Public Bill Committee

[Mr. Jim Hood in the Chair]

Clause 35

Bodies required to be notified of certain matters

Greg Mulholland: I beg to move amendment No. 233, in clause 35, page 17, line 38, at end insert—
‘(ba) to the relevant professional regulatory body’.
We are making reasonable progress, but I will try to be brief because we are all keen to get as far as possible next week. Amendment No. 27 introduced an important point of principle, but amendment No. 233 raises an important point of practicality. I hope that the Minister will not use the same arguments against the amendment, unless, of course, he decides to accept it, because it is not about being prescriptive—an issue on which he has commented on various occasions.
The amendment is important in a practical way for two reasons. In layman’s terms—an always useful method of explaining the impact of a Bill—one major effect would be a new, clearer regulatory system for health and social care, with some redefined and refocused responsibilities. Clearly, an important part of that is professional regulatory bodies, most of which support the new and refocused role that they will have. If we are to have a new, joined-up framework, which makes sense for the reasons stated earlier, surely we must include the professional regulatory bodies when a commission issues a notice—be that a notice of decisions or proposals, a warning notice or a notice of procedure for suspension. I appreciate the Minister’s comments about not wanting to be prescriptive, but professional regulatory bodies should be among the organisations that must be informed of such notices if this is to be a genuinely joined-up and effective system. We all know from other areas—from the Shipman case—that when we do not have properly joined-up systems and effective sharing of information, that can lead to issues and problems.
The second reason concerns a potential loophole that I would like the Minister’s views on. Is there not a danger that when an individual who has been issued with a suspension notice moves to a different area, they could slip through the net if the professional regulatory body with an important role in that area is not involved?

Sandra Gidley: I am reminded of a number of practical examples, including one in my constituency whereby a nursing home owner sacked a nurse because of abuse. He took the matter seriously, but we can envisage a case in which an inspector might highlight problems of abuse needing some sort of investigation. In the case to which I refer, the nurse was allowed to enrol with various agencies and work in the next county, and there was absolutely no way of tracking what she was doing. She was later, quite rightly, removed from the professional register.

Jimmy Hood: Order. I remind the hon. Lady that this is an intervention.

Greg Mulholland: My hon. Friend makes a useful point demonstrating a potential practical example, which is what I am trying to get across. I hope that the Minister understands that practical point and the need for a properly joined-up framework. We would be delighted if he accepted the amendment. One could say that it is absolutely belt and braces, but given that there are still concerns about the regulatory framework for health and for social care, as the Minister has acknowledged, surely it would make sense to include the professional regulatory organisations in this part of the Bill. I look forward to the Minister’s comments.

Stephen O'Brien: I consider the proposal perfectly sensible and I look forward to the Minister’s reply.

Ben Bradshaw: The reason why we must resist the amendment is not that it is prescriptive; rather, it is a question of degree. As members of the Committee will have noticed, the commission is required to give notice of action to any people whom it considers appropriate. We would expect that in most circumstances, that would include the relevant regulatory body, but we believe that it is better for that to depend on the particular circumstances, rather than there being a blanket requirement. For example, if a registered manager had received a warning notice for a minor breach that had then been properly corrected, the commission might consider it appropriate, or disproportionate, to have to inform the manager’s regulatory body.

Sandra Gidley: I take the Minister’s point about a minor breach about which it may not seem necessary to inform the regulatory body. However, there are cases where a series of minor breaches might flag up a problem, and surely the professional regulatory body is the ideal place to collate that information. People do not know where to complain when there is a problem. Shipman was a classic example—there were different areas in which concerns had been raised. There needs to be some way of bringing that information together in one place.

Ben Bradshaw: I accept that, but I still think it best that the Care Quality Commission be left to use its judgment. If there were a succession of breaches, that would clearly ring alarm bells. If we are talking about a relatively minor breach of a registration requirement that had been quickly addressed, it seems unnecessary to put the Care Quality Commission under an obligation. Indeed, there may be some people—care home managers, for example—for whom there is no professional regulatory body. Putting that requirement in the Bill is probably not the best way to achieve the end that I think we all share: that the professional regulatory bodies, where they exist, be informed when they need to be.

Greg Mulholland: I appreciate that the Minister did at least come back with different arguments in resisting the amendment. I have a couple of brief points to make. Following those comments I am going to withdraw the amendment, but this is an important issue, which the Minister acknowledged. We should be mindful of this issue during the Bill’s passage and when the new regulatory framework comes into force, and we may need to revisit it in future, with the input of the Care Quality Commission and the professional regulatory bodies. It is better to be safe than sorry, and that is a clear principle, even if that means that minor incidents should be reported. My hon. Friend the Member for Romsey made a valuable point: where there is a series of minor incidents that might be missed, the amendment would increase the clarity of the framework, which is essential to the Bill. It would also provide a safeguard, which is why we tabled it. However, I appreciate the fact that the Minister has listened, and I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 35 ordered to stand part of the Bill.

Clause 36

Periodic returns

Question proposed, That the clause stand part of the Bill.

Stephen O'Brien: How often does the Minister expects the returns set out in the clause to be made? That question goes to the heart of the burden of bureaucracy.

Ben Bradshaw: I am afraid that I cannot give that information at the moment; I apologise. The hon. Gentleman asked the same question this morning, I think, and I will endeavour to get back to him on it within the next few minutes.

Question put and agreed to.

Clause 36 ordered to stand part of the Bill.

Clause 37

Liquidators etc.

Question proposed, That the clause stand part of the Bill.

Stephen O'Brien: Another matter on which the Minister can help the Committee, whether now or in a few moments’ time, is that of liquidators. I suspect that he would be the first to agree that it would be helpful if the failure regime currently employed by Monitor was in front of both Houses when we consider the Bill and any regulations that may arise from it, particularly given that such regulations are subject to a negative resolution. I hope that he will be equally happy to make that failure regime available to the Committee.

Ben Bradshaw: The hon. Gentleman is aware that the failure regime is still a matter for discussion; therefore, I am not in a position to provide him with it. However, I can tell him that the time frame he asked about is annual.

Question put and agreed to.

Clause 37 ordered to stand part of the Bill.

Clause 38

Death of registered person

Question proposed, That the clause stand part of the Bill.

Stephen O'Brien: What is the length of time envisaged to allow a surrogate to take on the responsibility of registration in the case of the death of a registered person, and will that surrogate be liable in the same terms as the original registrant?

Ben Bradshaw: I am afraid that I will have to come back to the hon. Gentleman on that one, as well.

Angela Browning: I had not expected to speak to this clause, but a case with which I have been dealing this morning has prompted me to ask the Minister to consider a particular set of circumstances.
That case—perhaps I should have tabled an amendment as a result of it—involves a learning-disabled woman aged 65 who has been in some form of care or residential care all her life, and who was in residential care in my constituency when the care home closed because of the owner’s age. No one else would take the care home on, so I negotiated with social services and they agreed to move the woman to Hampshire, so that she could live nearer to her only remaining relatives—they did not take on caring for her, although they obviously took an interest. Unfortunately, her carer died in her sleep quite unexpectedly in November, and as an interim measure she went to live with her brother and sister-in-law, who are older than her. Now that she is living with them, the Devon authority paying for her care says that that is where she should stay.
Obviously, I will fight this case through the county council. Is there any way in which we can, in the unfortunate and unexpected circumstance of the sudden death of a named carer, ensure that such an event does not trigger a change to the underlying entitlement to service that the service user had before? Perhaps that is an unfortunate case and I will get a good resolution, but I ask the Minister to consider the context of it. Clearly, Devon county council now sees the death of the carer as an opportunity to reduce its commitment to a lady whom it is paying for out of area.

Ben Bradshaw: As a fellow Devon MP, I fear that I am well acquainted with the shortcomings of Devon county council, as is the hon. Lady. I am not in a position now to answer for the exact legality of the situation that she describes, but I will endeavour to do so in some other form. It would be for the Care Quality Commission to decide how long a surrogate would have responsibility for registration, rather than for it to be set in stone in legislation.

Question put and agreed to.

Clause 38 ordered to stand part of the Bill.

Clause 39

Power to modify Chapter in relation to newly regulated activities

Question proposed, That the clause stand part of the Bill.

Stephen O'Brien: As I am sure the Committee will have noticed, there was an unselected amendment tabled to the clause. In fact the point relating to that can be more sensibly dealt with in a stand part debate.
The memorandum on delegated legislation makes the helpful note that, because the power in the clause will enable the Secretary of State to modify the chapter by statutory instrument in its application to newly regulated activities of a prescribed description, any regulations will be subject to the affirmative resolution. The memorandum notes that
“this is not dissimilar to a Henry VIII power”.
Speaking of Henry VIII, I assure the Committee that, as he was wont to say to his wives, “I shan’t be keeping you long.”

Angela Browning: The old ones are the best ones.

Stephen O'Brien: I have known the saying for years. I have heard it many times, but I have never had the opportunity to use it. I thank the Committee for its indulgence.
To my mind, the provision is a Henry VIII power, which is when primary legislation is amended by statutory instrument. I hope that the Minister can help me, because the provision makes all of part 2 subject to a Henry VIII measure. We are concerning ourselves with primary legislation, so that means that it can all be amended by statutory instrument. My question might show my ignorance of procedure, but does the provision include the potential for repeal?
I am sure that the Minister is aware that Lord Justice Law suggested in 2002 in the Metric Martyrs case that it was unfair to attribute such powers to his late Majesty who reigned 100 years before the civil war and longer, yet before the establishment of parliamentary legislative supremacy. In today’s world, it would be interesting to know the thoughts of the Lords Constitution Committee on the clause. I do not know whether there has been an opportunity for informal or even formal consultation within the Government.
It would be helpful when considering the clause if the Minister could tell the Committee what newly regulated activities he envisages and what changes they might bring to the legislation, accepting that the clause is designed to catch the unforeseen. As an addendum, can he tell the Committee about the provenance of the list under subsection (3)? Given our discussions and those of the Liberal Democrats about not wanting to include in the past certain lists to give priority of identification, such a proposal suddenly seems to veer towards the Minister’s prescriptiveness. I question that as a matter of both consistency and precedent. Will he explain the provenance of the list as it might help us to understand why he has chosen that list, but not the list that we proposed?

Ben Bradshaw: Clause 39, as the hon. Gentleman has acknowledged, is intended to provide future flexibility so that the system can adapt to changes in the way in which health and social care are delivered. The delivery is becoming more integrated. It is responding to people’s needs, and it is changing as a result of innovation. It is possible that initially primary care will not come within its remit but, as more elective surgery is being delivered in the primary care setting, that change would require the flexibility that we are discussing.
It is also important to recognise that the power to modify the Bill after it is enacted does not apply to the registration of NHS bodies and other providers registered with the new commission from the outset as listed under clause 39(3). We have already made it clear that NHS hospital services would be regulated. Respondents to our consultation put forward convincing arguments for the inclusion of, for example, NHS primary care providers within the regulatory framework. The reason behind the provision is to provide the flexibility that we discussed the day before yesterday in relation to some cosmetic procedures. I do not want to rein in the future flexibility that might be needed.

Anne Milton: I appreciate that health care is changing rapidly and that we need flexibility to reflect the results of the changes. I received information from the Patients Association that the chief medical officer has commissioned a report from Joint Commission International, which will be looking at how we accredit and regulate health care organisations. It has suggested that such matters are changing even as the ink is not dry on the Bill.

Ben Bradshaw: Which is exactly why we need the flexibility that I have just described.

Stephen O'Brien: As the Minister was going through it, I was hoping for some reassurance about how we had arrived at the list in subsection (3). It occurs to me that something that we have already touched on in earlier Committee proceedings is not included in the list. For instance, for a housing association that produces many homes with Telecare that are not known as care homes, but are known as normal, independent homes that happen to have a lot of Telecare facilities, it would be quite difficult to make that fit into that prescriptive list. I think that it is a fair question, and I am hoping to get an answer.

Ben Bradshaw: I am advised that subsection (3) is about excluding those registered at the outset.

Question put and agreed to.

Clause 39 ordered to stand part of the Bill.

Clause 40 ordered to stand part of the Bill.

Clause 41

Standards set by Secretary of State

Sandra Gidley: I beg to move amendment No. 197, in clause 41, page 20, line 6, leave out ‘NHS’ and insert ‘health and social’.
This is a simple amendment. As the clause stands, the Secretary of State is mentioned only in the context of the NHS. We received a lot of oral and written evidence about concerns that the social care function would be lost. It is quite pertinent here to reflect on the words of Sir Ian Kennedy during our first sitting. He said:
“it is my position that ultimately, bringing together health care and social care regulations is desirable because the citizenry do not know, and care less, under what system they are being looked after—they want it to be seamlessly well-organised.”——[Official Report, Health and Social Care Public Bill Committee, 8 January 2008; c. 6.]
We are all aware of areas where the system perhaps comes apart at the seams, for want of a better phrase. I use as an example the case of continuing care. I suspect that every hon. Member in this Room has played a part in trying to secure continuing care funding for a patient. Often, they have Alzheimer’s and have significant health needs, but ultimately, a decision is made by a person or persons unknown that their need is not a health need, but a social care need, so they do not receive NHS funding.
In most cases, it is difficult to see where the division lies. I have had two very similar cases; one could hardly see a difference in the capabilities and illness levels of my two constituents. One received the funding, but the other did not. It was down to the different assessments on the day. Although the Government have made some attempts to improve that, I still think that there is a problem. In the case where the continuing funding was made available, the care was given in a nursing home, which is not part of the NHS. Although the constituent was NHS funded and she was receiving some NHS care from nurses, a lot of the care was also being received from other workers in the home. It seems rather perverse that the Secretary of State could make decisions on part of that care, but not that other part. We ought to be aiming for the seamless care that was described by Sir Ian Kennedy. Others echoed his sentiments: Denise Platt said that she wanted a strong social care focus to be retained. The amendment serves two purposes: to try to have that seamless aspect, and to make it absolutely clear that the focus on social care is retained in the Bill.

Stephen O'Brien: It seems a sensible proposal. It is difficult to understand why the Government are confining themselves to quality standards in NHS care and not beyond. Under the current system in which Ministers have day-to-day control of the NHS, one would have thought they would be doing this anyway and that the role would be distinct from that of the regulator. We must question what the underlying reason is for the power here. That is the argument.

Ben Bradshaw: First, I agree that improving quality in adult social care is every bit as important as improving it in the NHS, but there are other mechanisms and methods already in place to do that. Local authorities have their own local and national reporting and accountability arrangements, and the Minister for Communities and Local Government has powers to issue standards under the Local Government Act 2003. The Government are committed to a single performance framework for local authorities across all their functions, rather than having a duplication, which we think would be the impact of the amendment.
On the issue of independent health care providers, where a PCT uses private sector providers to provide NHS health care, of course the standards set under the clause will apply to those providers. As we have previously discussed, the registration requirements will ensure that all private and independent sector providers provide services at a particular level. The hon. Lady’s amendment asks for the Government to intervene as a performance manager in private transactions between entirely fee-paying clients or patients. In terms of pushing up standards, we do not believe that it is the Government’s role to intervene on matters of purely private health care. We believe that improvements in the commercial sector should be driven by the suppliers themselves as they strive to improve and attract more fee-paying patients. In a way it goes back to the argument we had two days ago about cosmetics—we must decide on the proper boundary of the role of the state.

Sandra Gidley: I find the Minister’s arguments hard to follow. In the same nursing home there could be residents who are purely NHS funded, those who receive funding via the local council and some who are using their own funds for the time being, as they have the money available. Is the Minister saying that we should apply standards to one set and ignore the others? It seems to be a mixed message.

Ben Bradshaw: My point is that the hon. Lady asks us to push the principle of performance management beyond what is generally considered to be the role of performance management in the private sector vis-Ã -vis the funded sector. However, in the situations that she has described, those institutions will fall under the registration requirement that will set minimum standards. She asks us to performance manage the care delivered under a purely private contractual arrangement between provider and client, and we do not feel that that would be a desirable thing to do.

Sandra Gidley: I am not wholly convinced by the Minister’s arguments. There may be a better way of phrasing the measure so that it encompasses what we wish to achieve. We may wish to revisit the matter, but for now, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Stephen O'Brien: I beg to move amendment No. 29, in clause 41, page 20, line 6, at end insert—
‘(1A) statements of standards must be established within the remit of the NHS Core Principles.’.
The amendment seeks, insofar as we are able within the scope of the Bill, to enshrine the NHS core principles in the legislation. The Committee will be aware that we in the Conservative party are fully committed to that, as stated in our published NHS (Autonomy and Accountability) Bill. In support of that, my right hon. Friend the Leader of the Opposition has consistently confirmed our party’s commitment to the NHS, that it should be and will continue to be under any incoming Conservative Government a service free at the point of need, with access based on need and the ability to pay. I hope that the Government would seek to support that core principle.
One has to note that in a consultation undertaken by the now Chief Secretary to the Treasury in December 2006 on the core principles of the NHS—principles that we have committed to enshrining in legislation—the Government admitted the principle that
“Public funds for healthcare will be devoted solely to NHS patients.”
It was a surprising admission at the time, and even if the Minister will not accept the amendment, I hope that he will tell us whether he still wishes to get rid of this particular central pillar of the NHS. Members of the Committee who sit on the Government Back Benches might want to question whether they support the Minister in apparently seeking to open the door to top-ups—[Interruption.]I do bless him for his continual sneezing, but I hasten to say that I have no clerical rights to do so.
In choosing whether to support the amendment, the Minister should be aware that, as we identified, he is choosing between his Secretary of State and the Prime Minister. We should compare the Prime Minister’s new year message to the NHS, which we have already quoted at least once in this Committee, with the report eight days later in the “Society” section of The Guardian that the Secretary of State did not want a constitution to give lots of work to lawyers by “enshrining”, as he put it, the constitution in legislation.
This important amendment provides an opportunity, which I hope will be consensual, to enshrine this core principle. We have offered this and many other opportunities to do what I should have thought would be incontestable among us.

Ben Bradshaw: The reason why we have trouble with the amendment is that we do not think it sensible or desirable to restrict the scope of the standards to the NHS core principles. Those core principles have existed since 2000, so we do not think that there is a need to legislate to introduce them. We have strengthened the force of the principles by incorporating them into the standard NHS contracts between primary care trusts and secondary care service providers, which were introduced in 2007. Those contracts required all sides to have regard to the NHS principles, and that is a more appropriate way of confirming the commitment of NHS bodies to the principles than enshrining them in legislation, as they are by definition general principles of behaviour that can be applied in practice in a variety of ways.
Because we want to put more power in the hands of front-line staff to get on with the job and let local circumstances help them with the application of those values, we believe that they will apply the core principles sensibly and flexibly. It would not be sensible for us to predict what effect the legal application would have on local practice, which is why we are inclined to resist the amendment.

Stephen O'Brien: The Minister just said that he does not think that the core principles should be enshrined in legislation. It is helpful to repeat what the Prime Minister said in his widely reported personal new year message to the NHS on 1 January, which can be read by all at www.dh.gov.uk—I even have details of how to find the particular sentence. He said that
“we will also examine how all these changes can be enshrined in the new constitution of the NHS setting out for the first time the rights and responsibilities associated with an entitlement to NHS care.”
If that is not to enshrine the core principles in legislation, one has to ask, what is? I am conscious that I am not going to make progress with the Minister—he has obviously decided what his position is.
I think that everybody is clear about our position on this: that it is appropriate to seek to enshrine the NHS core principles in legislation. Most unusually, we shall find an opportunity this Session for our NHS (Autonomy and Accountability) Bill to be considered by the House. That would be a better, more consistent and principled vehicle to use, rather than pursuing an ad hoc approach in Committee with the Minister. I hope that the Government will support our Bill, because otherwise, we shall be the only ones offering the enshrining of the core principles in legislation, notwithstanding the Prime Minister’s well-reported remarks of 1 January. As we shall have plenty of chances to revisit the issue, I am happy to beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 41 ordered to stand part of the Bill.

Clause 42

Periodic reviews

Stephen O'Brien: I beg to move amendment No. 30, in clause 42, page 20, line 27, after first ‘of’ insert ‘the quality of’.

Jimmy Hood: With this it will be convenient to discuss amendment No. 31, in clause 42, page 20, line 32, after first ‘of’ insert ‘the quality of’.

Stephen O'Brien: The amendments seek once again to limit the scope of the commission to reviews of quality and value for money, rather than economic viability. The debate will be akin to some degree to that on amendment No. 6 to clause 2, at column 175 of the Official Report. I am sure that members of the Committee will recall that I talked about economic regulation covering all aspects of the operation of the social market. The economic regulator would need to possess substantial powers to intervene in order to determine service reconfiguration and the management of NHS trusts, and to determine how service requirements must be met.
However, a quality inspectorate needs to report openly and frankly on the quality of the services provided. There could be tension between the two activities. We hope not, but I dare say that we can all envisage circumstances where the need to drive efficiency from an economic point of view might conflict with the need to warn about the potential of declining standards of care from a quality perspective.
When we discussed the matter before, I must say in fairness to myself that the Minister misrepresented the position. I am putting forward the desire—a party position—not to extend massively the powers of Monitor, which suggests a net increase in regulation, but to transfer the economic regulation role of the CQC to Monitor. As the Minister knows, we were unable to take oral evidence from Monitor. We had hoped to do so, but that was not possible due to compromises made on the programming.
In the foundation trust sector, which is relevant to the work of Monitor, quality and economic regulation are already divided along those lines and to those bodies. Our position aligns with our desire to see all trusts achieve foundation status. I should be interested to hear the Minister’s explanation of his contention that our establishment of an NHS board poses a potential massive conflict of interest. That would happen only if politicians continue to want to run the NHS, rather than to provide the means by which it can be run with clinical priorities as the first order of concern. I hope that the Minister has had time to reflect on matters and sees the merit in our proposals.

Ben Bradshaw: The hon. Gentleman said that he wanted to retain the role for the review of value-for-money elements, but that would be excluded under the amendment. It would restrict the scope of Care Quality Commission reviews simply to the quality of provision. I understand his desire to extend the remit of Monitor, but I would not be in favour of restricting the reviews of the commission in that way, and nor would the commission, I believe, given what we heard during our evidence session.
Of course, the reviews will look at the quality of provision. Subsection (4) sets out that assessments will be conducted by
“reference to such indicators of quality”
set out by the Secretary of State, or delegated to the commission to determine. The reviews will need to look at more than the quality of services. For example, when assessing local services we want greater emphasis to be put on how well they are working together to achieve overall outcomes, and to see whether they reflect the needs of their local populations. We will talk later about commissioning, but the reviews may consider the commissioning record of a primary care trust and how well it is meeting the needs of local people. Those issues seem to go beyond the strict definition of quality in the amendment, which is the main reason why we wish to resist it. We will discuss the role of Monitor at greater length later, but I point out to the hon. Gentleman that Monitor covers only foundation trusts, not all registered providers, and this is not just about NHS care.

Stephen O'Brien: We will not press the amendment to a vote because I can see that we will not win on this one, and I will withdraw it on that basis. However, I hope that the Minister will take the following point seriously. If one genuinely hopes, as I believe his Department does, that all trusts can move toward foundation trust status—that is our stated aim, and by the very nature of what is intended, that must be the aspiration—it would make more sense if the regime that covers FTs, in the light of how Monitor divides up its responsibilities, is consistent with the provision that we are considering. That said, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Sandra Gidley: I beg to move amendment No. 195, in clause 42, page 20, line 28, at end insert—
‘(aa) conduct reviews of the making of arrangements for the provision of healthcare by the Trust’.

Jimmy Hood: With this it will be convenient to discuss the following amendments:
No. 261, in clause 42 , page 20, line 28, at end insert—
‘(aa) conduct reviews of arrangements made under paragraph (a) above’.
No. 263, in clause 44 , page 21, line 39, at end insert—
‘(d) the making of arrangements by a Primary Care Trust for the provision of health care.’.

Sandra Gidley: The amendment is a simple one and was tabled after listening to the oral evidence. I was struck by the powerful arguments made by Anna Walker when she was asked what the powers of the new Care Quality Commission should be. She expressed concern that the Bill, as drafted, focuses too much on the regulation of providers, whereas the provision of health care is about what care is purchased or commissioned on behalf of the user, as well as the provider. I do not usually read out large quotes, but it is worth reminding the Committee of what she went on to say:
“that is of course also true for social care. We have concerns about two particular areas. The Bill, as drafted, gives the new regulator the power to carry out wider reviews. That is welcome, because it is under that power that we have looked at learning disabilities, mental health and dignity in care for older people in hospital, so it is a very important power to us. The difficulty is that it is limited to providers only. What we find in health care—I must leave it to others to talk about social care—is that you can say to a provider, ‘Look, that service simply isn’t good enough’, to which their answer can often be, ‘But we are not being paid to provide any more than that.’
In order to get the issue right, on behalf of the user and the patient, you have to look at a mixture of commissioning and provision; what the primary care trusts are doing, as well as what the provider is doing. We would like to see that power for the wider review cover commissioning as well as provision.”—[Official Report, health and social care Public Bill Committee, 8 January 2008; c. 17, Q25.]
That is a laudable principle.
I do not want to pre-empt the Minister’s comments, but I fully accept that practice-based commissioning is fairly new. It does not work terribly well in some parts of the country and I am told that is being replaced by something called world-class commissioning, for which we wait with bated breath. There are problems with some of the probity of commissioning. Sometimes, the commissioners are in effect consulting GPs who commission services from themselves—there are not enough Chinese walls in place.
The amendment tries to pull back the focus, so that it is not simply some cosy little group deciding what services are commissioned from where. I am not saying that all groups are like that, but I dare say that the odd one is. The amendment would provide an extra provision, so that the commission could come in and say, “You are doing it wrong. You are not providing service of the best quality and the problem has arisen because of the commissioning”.
The amendment may not be perfectly drafted, but the general principle is important. I hope that the Minister can reassure me that he is at least rethinking the matter.

Stephen O'Brien: We have tabled amendments Nos. 261 and 263. The hon. Lady was honest enough to say that perhaps her amendment is not perfect in all respects. Amendment No. 261 provides an alternative opportunity, as it seems to achieve much the same thing. Amendment No. 263 would enable special reviews of commissioning practice, for example.
What is important here is the point that Anna Walker made to the hon. Member for Leeds, North-West during the oral evidence: in order to get the issue right, the mixture of commissioning and provision has to be looked at, as does what the PCTs and the providers are doing. That power for the wider review should cover commissioning as well as provision. The Committee might also want to read “local authorities” with “PCTs” and even go as far as including “individual private purchasers of social care”. If we end up finding that, unusually, the Minister is not able to accept our amendments perhaps he would like to add that to his “Reflect” box for what I hope will be a monumental improvement by the time we reach Report.
I will give an example. The Healthcare Commission’s annual health check for 2008-09 will assess PCTs on the quality of their commissioning. We need to ask seriously whether that will continue under the new CQC. I also alert the Committee to a report on 2 August last year in the Financial Times, which stated that
“a battle had broken out”
between David Nicholson, the NHS chief executive, who sees the PCTs as part of his management empire, and Anna Walker, who said that there must be
“a mechanism for holding people publicly accountable”
for the quality of purchasing. The report went as far as to say that one Department of Health official shared that view while others opposed it. I shall not endeavour to catch the eye of any of the cast of officials that the Minister has with him today. Under Anna Walker’s system, it would remain the job of the strategic health authorities to performance manage the primary care trusts, but there is a need for an independent assessment of their performance.
The NHS Confederation has also backed the idea of independent assessment, saying that it was needed
“for reasons of public accountability”.
The point is a strong one, it commends itself and I hope that the Minister feels persuaded.

Ben Bradshaw: I am grateful for the opportunity to discuss this issue, not least to put on the record that we are completely committed. The hon. Member for Romsey asked me to rethink, but I do not think I need to—I am in the same place as she is and I agreed with everything that she said. We are completely committed to the independent performance assessment of PCT commissioning and we believe that that should be a role for the Care Quality Commission. That is provided for in the Bill, and I will explain why in a minute. It is entirely right for that to be the case given that 80 per cent. of taxpayers’ money is now spent on the health service through primary care trusts, which are the main commissioners.
There was widespread support for that during our consultation on the proposals in the Bill. That is why clause 42 requires the Care Quality Commission to review PCT commissioning, as well as the health care that they provide. Subsection (1) requires the commission to conduct overall reviews of the health provided in each PCT area, whether provided by the PCT itself or by other people under arrangements made by the PCT. Those reviews will assess how well PCTs are meeting the needs of their local populations. PCT provision will also be reviewed in its own right under subsection (2).
Clause 44 covers commissioning by local authorities and primary care trusts, and how that impacts on the services people receive and the health of the local population. The commission is able to investigate specific incidents, or series of incidents that put the health, safety or welfare of people at risk. That would include looking into the decisions that have led to that situation arising, such as the commissioning.
Given that reassurance, and the positive discussions that I have had with Anna Walker about the issue over many months, I hope that the hon. Lady will be reassured enough to withdraw her amendment.

Sandra Gidley: I am not entirely convinced that Anna Walker was reassured, judging by her comments during the evidence-taking session. I fully accept that clause 44 allows for special reviews and investigations and I can see that that is covered. However, it would be useful to amend the wording to clarify that that is a key part of the role. At this moment it is best to reflect on the Minister’s comments and perhaps go back to the Healthcare Commission to see whether it is as reassured as he claims. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Stephen O'Brien: I beg to move amendment No. 135, in clause 42, page 20, line 30, at end insert—
‘(d) in conducting reviews under subsection 1(a) the Commission shall review and assess annually the Trust’s plan for improving health, as prepared under section 24 of the National Health Service Act 2006 (c. 41).’.

Jimmy Hood: With this it will be convenient to discuss amendment
No. 136, in clause 42, page 20, line 40, at end insert—
‘(d) in conducting reviews under subsection 3(a) the Commission shall review and assess annually the plan for improving health insofar as it impacts upon the authority, in accordance with section 24(3) of the National Health Service Act 2006.’.

Stephen O'Brien: Let us see whether we can get this amendment away from the “Reflect” box. The amendments would give the CQC the power to inspect PCTs’ plans for improving health, with the intended consequence that they would take such plans seriously. It is not a draconian or over-prescriptive measure, but I suspect that the power to inspect is in itself a potentially powerful tool. PCTs already have powers to publish an annual health improvement and modernisation plan—HIMP. Those were originally under section 28 of the Health Act 1999 and are now under section 24 of the National Health Service Act 2006, which sets the framework for the local commissioning and contracting of services.
I have already outlined what we have argued are the significant failings of the Government on public health. The force of these plans, therefore, will be to seek to combat widening health inequalities and poor public health at a local level. I will not repeat the arguments that we had in relation to other clauses, but that is what lies behind our concern and why this would be a pragmatic, cost-efficient measure to include. I hope that the Government find that it commends itself, because we would require all PCTs to produce such plans and require each PCT’s coterminous local authority to be consulted on their development. Of course, overlapping authorities would therefore have to be on a multi-consultation process.
In those cases where agreement between local authorities and PCTs cannot be reached, disputes would be resolved in the first instance by the relevant strategic health authority, with a right of appeal to the NHS board. If the HIMP involves a major service reconfiguration, the independent reconfiguration panel would be consulted as necessary. I want to ensure that the Minister realises that this is a genuinely thought-through, sensible proposal that is not particularly sizeable but is significant. I genuinely hope that he will find himself persuaded by the arguments.

Ben Bradshaw: As we have already emphasised, the commission’s reviews will cover the whole range of functions carried out by bodies in relation to health care and adult social care, including public health and community services. Where we differ from the hon. Gentleman is that while we believe that the local plans will look at what PCTs and local authorities plan to do, the role of the commission will be to focus on the outcomes for the people who use those services. He referred, rightly, to the differentiation between the role of performance management by the strategic health authorities, and regulating. I suggest that the amendment, which would require the commission to review the plans, strays a little further on to the performance management role than we think is a good idea. I am afraid to disappoint him, but I will resist the amendment.

Stephen O'Brien: I am not sure that I can take much more rejection. I am tempted to dwell on the point, which is probably my best lever. If I cannot persuade the Minister, I cannot. He spoke about reviewing and having too much of a hands-on approach, but this power was drafted as “inspect”. I accept that if someone inspects they are likely to have a view as to whether that amounts to a review, but I do not want to split hairs on that. However, the power of inspection was more to have something that would urge people to ensure that they got it done in a timely fashion.
I was initially sceptical when the Government suggested—it is a direct parallel and involved an area like mine, which I suspect is not dissimilar to parts of the Minister’s constituency—that it would be appropriate for parishes to bring in parish plans. I saw that as yet another piece of written bureaucracy that is going to tie people up. Instead, it has served to bring focus and energy into local communities to decide what they want collectively to make their priorities. In many cases—not all—it has served to be a good, rather than a burden. I wanted to inform what is going on here through that process. The fact that one has the right to come in and inspect, whether or not an inspection has been made, encourages that to happen without being over-prescriptive.
As I say, I do not think that I have been able to persuade the Minister, but I hope that, as a final flourish, he might put that also into the “Reflect” box. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Sandra Gidley: I beg to move amendment No. 137, in clause 42, page 21, line 1, leave out subsections (4) to (8) and insert—
‘( ) The Secretary of State shall not create any indicators of quality additional to those in the National Indicator Set.’.

Jimmy Hood: With this it will be convenient to discuss the following amendments:
No. 93, in clause 42, page 21, line 11, at end insert—
‘(7A) In setting out the indicators under subsection (4) for assessing each English local authority, the Secretary of State shall—
(a) have regard to the National Indicator set, and
(b) in such cases as the indicators impose a regulatory burden on local authorities beyond the National Indicator Set, lay draft regulations before Parliament.’.
No. 32, in clause 42, page 21, line 16, at end insert—
‘(c) all relevant statements submitted to the Secretary of State.’.

Sandra Gidley: This is a probing amendment. I think that the Minister is going to disagree with me, but significant concerns have been expressed by some of the existing regulators, who see increased powers for the Secretary of State, and less flexibility for the new commission.
The amendment attempts to take out some of the indicators that the Secretary of State may approve, or that the commission may submit to the Secretary of State for approval. By sticking to the national indicator set, that would also potentially give the new commission some protection from a future Secretary of State for Health displaying megalomaniac tendencies, and wanting to impose something on the commission.
As I say, this is a probing amendment, and it seeks some clarification on what autonomy the commission has to review something that it deems important, and how much interference it could potentially be subjected to under the clause as currently drafted.

Stephen O'Brien: I note that the amendment seeks to deal with megalomaniac tendencies, which struck me, coming from the Liberal Democrats, as a little “Dream on”. That was meant to be friendly and light-hearted.

Sandra Gidley: I am wounded.

Stephen O'Brien: Not half as wounded as I am, given the rejection that I have been receiving from the other party.
Amendments Nos. 93 and 32 are slightly more toned-down versions of the Liberal Democrat amendment. It appears that the Local Government Association has sought to brief both the official Opposition and the Liberal Democrats. We want to ensure that the amendments, which have arisen from the LGA, deal with the regulatory burden on local authorities and whether that would be disproportionate, given the various angles from which they are regulated. As an example of the stringent approach that we have taken to our amendments, we returned some of those that were proposed because we felt that they were constraining the CQC in a blanket way, which could be potentially obtuse. However, on the amendments that we have been urged to consider tabling through the various representations made to us, we have said that the CQC should have a statutory responsibility to have regard to the national indicator set when setting its regulations, and that Parliament should have the power to monitor the regulations if they become over-burdensome.
My record in the House as being completely, utterly and unashamedly opposed to over-burdensome regulation—not least when I had a different portfolio in the shadow team—will commend the fact that the amendment has been not only put forward with some genuine concern and vigour, but is supported by the three pamphlets that I published on the subject. Not many people can wear such a large anorak in getting that excited about regulations. I urge the Minister to consider the amendment as a sensible way to deal with the potential for over-burdensome regulations.
Amendment No. 32 would ensure that the versions of the method statement drafted under subsection (6)(a) are available to the public in order to deliver clarity when and if the Secretary of State, who must approve the statement under subsection (6)(b), alters the method of statement, and that the public can be made aware of those alterations. As the Minister is so far unwilling to remove the somewhat unfettered power that a given Secretary of State may have over the CQC, we think it important to establish some clear accountability regarding the influence wielded by the Secretary of State.
I hope that the Minister can give us some guarantees about the CQC’s not imposing regulatory burdens above and beyond the national indicator set. What discussions has he had with the Secretary of State for Communities and Local Government on that issue, and if he has not discussed it, when will he do so? Will the draft method statements be available to the public, and why does the CQC have to report to the Minister in such a way?

Ben Bradshaw: I think that the hon. Member for Romsey said that amendment No. 32 proposes that the commission should publish the drafts of its methodology before submitting them to the Secretary of State, while not seeking to change the requirement of the Secretary of State to approve that methodology. I can only assume that she is trying to ensure that a future Secretary of State does not have undue influence over the final version of that methodology. At least the hon. Lady accepts that the Secretary of State has a valid interest in ensuring that the methodology represents a good measure of overall performance, and a consistency of approach across the whole regulatory framework.
I am not aware of any difficulties with the system as it has been operating until now, and as far as I am aware there have been no suggestions by the current commissioner that the existing system has been a barrier to independence. Instead, it has been found quite useful that decisions on the methodology between Secretary of State and commissioners have been agreed through thorough discussion and agreement. I do not think that the amendment is necessary.
Amendment No. 93 would require the Secretary of State to have regard to the national indicator set when devising or approving indicators of quality to be used to assess the performance of local authorities. It would also require draft regulations to be laid before Parliament if further indicators were introduced in addition to those in the national indicator set. The suggestion is that that would place an additional regulatory burden on local authorities, and I assume that the intention is that the draft regulations would contain the indicators that pose an additional burden to allow Parliament the opportunity to consider them.
Amendment No. 137 goes even further and would remove subsections (4) to (8) of clause 42. In their place, it proposes that the Secretary of State should not set any indicators of quality that are outside the national indicator set. The problem is that that would leave the Secretary of State with no power to devise indicators to be used by NHS bodies or local authorities, or to delegate that function to the Care Quality Commission. Nor would the amended clause say what indicators the commission should use in conducting reviews of NHS bodies or local authorities.
The amendment would also remove the requirement for the commission to prepare the method that it proposes to use to assess and evaluate a body’s performance. It would therefore remove the requirement for the commission to publish the indicators and the methodology. That would mean that none of the bodies being reviewed under the clause would have any information on what the commission would be assessing them against. We do not think that that would be a very sensible outcome.
I assure the hon. Members for Romsey and for Eddisbury that we are committed to ensuring that there is a joined-up approach in assessing local authorities. Where the indicators used in reviews under the clause relate to local authorities working alone or in partnership with PCTs, other NHS bodies or other local service providers, they will form part of the single set of national indicators to be used in the new comprehensive area assessments of local authorities. In that spirit, I hope that the hon. Lady feels able to withdraw the amendment.

Sandra Gidley: I thank the Minister for his reply. I am reassured to a certain extent that these proposals replicate existing powers and that no concerns have been raised to date. In the light of that, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 42 ordered to stand part of the Bill.

Clause 43

Frequency and period of review

Stephen O'Brien: I beg to move amendment No. 33, in clause 43, page 21, line 26, at end insert—
‘(1A) In setting out the frequency with which reviews under section 42 are to be conducted the Commission must identify through a Regulatory Impact Assessment the reduction in the regulatory burden.
(1B) The power of the Commission to increase the regulatory burden shall be set out in regulations approved by a resolution of each House of Parliament.’.
The amendment would ensure that the burden of regulation is properly, quantifiably and accountably measured and that where the burden is increased, Parliament has the opportunity to debate whether that is justified. The amendment commends itself.

Ben Bradshaw: I have a great deal of sympathy with the desire to see a proportionate regulatory system—that came out very clearly in the evidence session. The problem with the amendment is that it would oblige the commission to publish an impact assessment to demonstrate that when it sets the frequency of reviews, they will result in a reduction in regulatory burdens. We agree with that sentiment. That is why clause 2 obliges the commission to have regard at all times to the five principles of good inspection practice: transparency, accountability, consistency, proportionality to risk and targeting where it is most needed. That is also why the commission is required to produce inspection programmes under schedule 4.
We believe that we need to allow the commission the flexibility to vary the frequency of reviews, and for those reviews to not simply be reduced. That would be the impact of the amendment. There has been the example over the last few years of health care associated infections. Most of us would regard as desirable an increase in the regularity of reviews on particular issues. While I sympathise very strongly with the motivations and sentiments behind the amendment, we believe that the commission should be free to respond to rapidly changing circumstances, while at the same time reducing the overall burden of regulation on providers, as we will discuss later in considering the commission’s gate-keeping functions.

Stephen O'Brien: That is a fair point. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 43 ordered to stand part of the Bill.

Clause 44

Special reviews and investigations

Sandra Gidley: I beg to move amendment No. 196, in clause 44, page 21, leave out lines 37 to 39 and insert—
‘(a) all providers of health and adult social care
(b) all commissioners of health and adult social care.’.

Jimmy Hood: With this it will be convenient to discuss amendment No. 262, in clause 44, page 21, line 37, leave out ‘NHS’ and insert ‘health’.

Sandra Gidley: Amendment No. 196 was tabled by the Liberal Democrats and amendment No. 262 by the Conservatives. They have more or less the same aim. The clause provides for the review and investigation of adult social services across the board, whereas the powers on health care are restricted to the NHS. In its submission to us, the Healthcare Commission pointed out that
“there is no evidence that the risk of service failure that would warrant investigation is higher or lower in NHS or private care”
It also said:
“In our experience, wholly private services may require review just as publicly funded ones may (for example, cosmetic surgery). In many services provided by the independent sector it is not possible to separate out elements of performance which relate to publicly funded patients and those elements which relate to those privately funded (for example, many independent mental health hospitals have both publicly funded and privately funded patients).”
I was also prompted to table the amendment because of a local case. Someone went into the local BUPA hospital and, sadly, died. It was clear from the evidence that there was insufficient medical cover and that certain complaints were not taken seriously at the time. If they had been investigated, that gentleman might be alive today. I struggle to see how that case would be covered, because the health care was privately purchased. Clearly, that case raises questions about the general provision of care in that hospital.
In the past—not so much today, but when I was first elected in 2000—local private sector hospitals undertook a great deal of work on behalf of the NHS. It would seem invidious to inspect a hospital and reach a conclusion on it solely on the basis of its NHS provision. I think that most members of the public undergoing invasive surgery would automatically assume that private sector hospitals are subject to an appropriate inspection regime, and my amendment is an attempt to capture all health and adult social care providers and to ensure that nothing falls through the gap.

Stephen O'Brien: The hon. Lady’s amendment seeks to bring all providers and commissioners of health and adult social care within the reach of the CQC’s special review process. It is a sensible amendment. She knows that I am not given to over-praising anything that comes from the Liberal Democrats, but I must say that it contains much neater drafting than the Government’s drafting. I commend it.
Amendment No. 262 prompts us to ask why the Bill says “NHS” rather than “health”. The hon. Lady touched on that and gave examples to reinforce that point. This is the clause about which Dame Denise Platt of CSCI said the following in the oral evidence session:
“We are also very concerned that some of our functions are dilute and become permissive in the new commission.”——[Official Report, Health and Social Care Public Bill Committee, 8 January 2008; c. 7, Q7.]
Much has been said about the fact that permissive, rather than statutory, functions will have less chance of being enacted in a tight funding settlement. That is a problem when the functions that are being made permissive are seen by both the regulator and third-party groups as being the most important.
To save time in the stand part debate, let me address a related issue that I can better deal with now. I hope that the Minister will feel able to give some assurance on a question that has arisen. He might wish to say when the new commission could commence such reviews and, more importantly, whether he expects a hiatus in the researching and publishing of such reviews between the winding up of the current regulators and the full functioning of the CQC.
In her oral evidence, Dame Denise Platt said:
“It is not clear to us why the function cannot be transferred from the start, and why it is going to be put into abeyance for a year—perhaps longer.”——[Official Report, Health and Social Care Public Bill Committee, 8 January 2008; c. 7, Q7.]
Clearly, there are serious implications. The Minister should note that within the first year of its operation, CSCI carried out three major reports, while dealing with its own establishment and reviewing the way in which it carried out its nascent regulatory functions.
The question is of interest not only regarding the quality of provision and safety; I am sure that the political angle will not have escaped the Committee. Any hiatus would prevent reports from being carried out before a rather magical date—the summer of 2010, well after what is gearing up to be something of a rocky election for the Labour party. I hope that the Minister can give an assurance that there will be absolutely no delay, no hiatus and total continuity; otherwise, such a postponement might be interpreted as having a political angle, rather than a functional one. I hope that the Minister will also address the other point that has arisen.

Ben Bradshaw: As we have already heard, clause 44 covers commissioning by local authorities and primary care trusts and how it impacts upon the services that people receive and the health of the local population; it also provides for scrutiny of the way in which strategic health authorities contribute to those operational issues. The amendments would preclude that last discretion.
Clause 90 defines the terms used in clause 44 and elsewhere in the Bill, and makes it clear that NHS care includes all health care provided by primary care trusts or other people providing health care under arrangements made by primary care trusts. At the moment, as we know, independent sector providers are included in reviews and investigations into adult social care when offering services under agreements reached with local authorities, but not otherwise. Independent health care providers can be covered by special reviews and investigations when they are offering services directly on behalf of the NHS.
That takes us back to discussions that have been a common theme through this period—how far the new Care Quality Commission should involve itself in purely private transactions between individuals and businesses. Special reviews and investigations are intended to provide the commission with the power to consider issues that might undermine public confidence in publicly funded or commissioned services, and to encourage improvement in such services. In those circumstances, we think it right that the scope of the commission’s reviews and investigations under clause 44 should extend to people who provide services under arrangements made by a PCT or a local authority. That will apply whether they are statutory or independent.
The commission will of course monitor and inspect anybody providing regulated activities as defined under clause 4, to ensure that they meet the necessary requirements. The process will be the same whether they are statutory or independent sector bodies. The commission will be able to investigate the failings of a specific provider and take enforcement action as appropriate.
I think that we will be talking about the transition a little later, but I hope not at great length or repetitively. The new Care Quality Commission will be able to conduct urgent reviews on issues that it thinks are a matter of safety or quality in the initial 12 months phase. However, given the substantial registration process that will need to be established within that first year, we believe that there should be a transition period during which it does not conduct the special reviews. We should all note the warm welcome that Anna Walker gave to its continued freedom to conduct whatever reviews it wants. However, until the registration process settles down—it is most important to the new regulatory regime—the reviews that it carries out should concentrate on safety and quality. That is obviously a sensible approach.

Sandra Gidley: I am slightly confused as to why the Minister appears to think that there are powers to deal with the situations that I described earlier, whereas the Healthcare Commission thought that there could be gaps in what it could regulate. I am not entirely convinced that the example that I quoted would be fully captured by the proposal. If there is a problem in a private hospital, I suspect that the bar would have to be raised considerably higher before anyone thought to investigate or review it in a special way.
I say that because the Minister stressed that it is not the Government’s business to consider private arrangements, so, more or less of necessity, the new commission would focus its efforts almost entirely on NHS provision. Some would say that that is perfectly understandable. However, there is a wider public interest issue on which we need absolute clarity. I should therefore be grateful if the Minister described what powers will be available and said how the situation that I described could be dealt with if it seemed that there was a trend——that perhaps one or two complaints had been received. With that proviso, I will withdraw the amendment.

Stephen O'Brien: I have an amendment in this group and I, too, am inclined to support the hon. Lady in withdrawing the amendment because we will come to transition arrangements in due course. However, we should not underestimate the danger of the difference between what is called “urgent”, which may carry all sorts of definitions, and what would normally have been carried out had the commission not been part of the new registration process, given the work load that that entails. There are still many issues to be debated to gain our confidence.

Sandra Gidley: I agree with the hon. Gentleman that the matter requires some reflection and greater clarity regarding what will be covered by the new regime. I am reluctant to do so, but with those significant reservations, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Stephen O'Brien: I beg to move amendment No. 34, in clause 44, page 22, line 9, at end insert
‘which shall only be laid before the Secretary of State at such time as it is made public.’.

Jimmy Hood: With this it will be convenient to discuss amendment No. 45, in clause 77, page 37, line 32, after ‘must’, insert ‘simultaneously’.

Stephen O'Brien: The amendments to clauses 44 and 77 respectively would ensure that Parliament receives reports of special reviews and investigations and the commission’s own annual report at the same time as the Secretary of State. They would also ensure that the Secretary of State can neither suppress nor edit such reports and, furthermore, that he is not given knowledge in advance of Members. The amendments are in line with the Prime Minister’s desire to re-establish the supremacy of Parliament, so I am confident that they will commend themselves to the Minister.

Ben Bradshaw: It will not surprise the hon. Gentleman to learn that I cannot accept the amendments. As he well knows, they would make it impossible for the Care Quality Commission to give the Government or, by implication, the NHS provider about which it is to publish a report, including details of specific recommendations or criticisms that will be made, any advance warning that it is going to do so. I am sure that that is not what the hon. Gentleman intends. It is perfectly reasonable that the Government, the NHS and social care organisations should have a few days to digest, and in some cases challenge the factual accuracy of, any findings.
We have warmly welcomed all the reports made by the commission over the last two years; they have been extremely helpful and very good. However, it is not reasonable for the new regulator to be able to give any advance warning to organisations about which it is to report. There is common practice in relations between organisations and their regulators on this point, and it would not be fair on those other organisations to accept these amendments as drafted.

Stephen O'Brien: I ought to tell the Minister that I had not thought of this until I reflected upon why things had gone so badly wrong in the case of Maidstone and Tunbridge Wells NHS Trust. It turned out that it was a draft, not a final report, that reached the Department in May 2007, but no action was taken until October 2007. I understand the Minister’s position, of course, and accept it in a pragmatic way, in the hope that one day our positions may be reversed. I dare say that if I were speaking from the Treasury Bench, I too would want advance warning were criticism coming. I am not being difficult about this just as a member of the Opposition.
That said, the normal forewarning has been the practice of the Government. In this case, however—a hospital-acquired infection of clostridium difficile resulting in the number of deaths that occurred at Maidstone and Tunbridge Wells NHS Trust—there had been a thorough draft report in May on which we had no action until October. That seems, by every test, not to be simply forewarning but either not being on top of things or seeking to manage the situation in a way that was not open to public scrutiny or accountability. There is a general sense of frustration that accountability has not been forthcoming: only a sense of shock at the sheer scale of the terrible consequences, let alone the individual cases. That was what suggested to me that we needed to address this, hence these amendments.
I have listened to the Minister’s general point. I do not cavil at that, but I do feel that there is a valid point in making sure that there is not the capacity for the Government and others to sit on difficult news or information, particularly in health and social care where the individual or, indeed, general consequences are terrifying. I will withdraw the amendment, but I hope that the Minister has had the opportunity to listen to that plea, and perhaps he will also add that to the list of items on which he wishes to reflect. I think that the point is well made; there is not much purpose to be served by forcing this to a Division, and I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause stand part of the Bill.

Jimmy Hood: With this it will be convenient to discuss amendment No. 260, in clause 158, page 104, line 17, at end insert—
‘(aa) section 44’.

Stephen O'Brien: Amendment No. 260 seeks to add clause 44 into the commencement clause, clause 158. The effect of this will be to bring clause 44 into effect on the day the Bill is passed . The consequence is that the CQC will be able to carry out reports or investigations from its instigation. This, therefore, ties in neatly with the discussion we have just had on the amendments tabled by the hon. Member for Romsey and myself. I do not think that commencing this clause from the point of enactment will prevent the current regulators from continuing to carry out reports or investigations until such time as they are wound up, which the Minister may have had in mind as a counter-point.
The Minister has talked about a shadow body—sadly, Opposition Members know too much about the word “shadow” and are doing our best to get rid of it. I do not think that the Committee would be concerned if the shadow body carried out non-duplicative investigations and reports during the transition period. I believe that the concern for the Committee, current regulators, patients and the public is that there is a hiatus in those crucial reports. As I have noted, that hiatus could prevent any such reports from being carried out until the summer of 2010, which carries obvious political resonance.
It would seem from the Government’s response document to the consultation on the future regulation of health and adult social care in England, which explains the policy detail behind the Bill in relation to regulation in the new Care Quality Commission, that possibly they are seeking some form of delay.
The Minister has said in a previous answer that urgent inspections and reviews could be carried out. I worry that “urgent” could vary in the eyes of different people. I hope that the commission would have total autonomy to decide what is urgent, and not be prevailed on by a Government who might regard some things as not urgent.
The Government have said that:
“There will be a phased transition from the current systems to the new. The first priority will be the safety and quality of care in hospitals and other care providers. The Care Quality Commission’s general service reviews, that are not directly concerned with assurance of acceptable levels of safety and quality, will not start until it has fully implemented the new registration system. The Care Quality Commission will agree this start date for general service reviews with the Secretary of State once it is clear that the new system for checking safety and quality assurance is fully in place.”
They stated further that:
“Once the safety and quality assurance systems are fully up and running, the Care Quality Commission will be able to carry out general service reviews, studies and research on issues that arise from carrying out its functions. It will bring forward an annual programme of work for discussion with the Secretary of State; this process will also allow for the need to respond to exceptional circumstances.”
The continued power to make independent studies, reviews and reports without direct Secretary of State approval is welcome. However, it is strongly arguable that the new regulator’s power should commence at the inception of the body. That is from 1 April 2009, when it takes on its other functions.
Such reports are crucial in providing an evidence base for driving up social care and health standards across the piece, and to reporting fully on their state. It is arguable that the chair and board of the new commission would be best placed to decide what reports the new body should make, and when it should make them; taking account of Department of Health views, but not reliant on direct approval. After all, the Government seem to have set great store in allowing the new regulator to make its own decisions on its structure and activities in earlier stages of the Committee. The Minister has said:
“We believe it should be for the commission itself to establish the organisational structures and split of responsibilities that it determines it needs best to carry out those functions and deliver its aims”——[Official Report, Health and Social Care Public Bill Committee, 10 January 2008; c. 135.]
To do otherwise would seem to undermine the independence of the new regulator. It is only by exercising its independence that such a regulator can be of service to the public and support improvement in the sectors.
Indeed, within its first year of operation the Commission for Social Care Inspection carried out three major reports while dealing with its own establishment and reviewing the way it carried out its nascent regulatory functions. It is also of note that in the current legislation CSCI can carry out independent reviews and studies as a statutory function. The Bill appears to water that down. The activities described are the same, but the nature of the power is different. Section 80 of the Health and Social Care (Community Health and Standards Act) 2003 confers that activity as a function rather than a permissive power. Powers are permissive; functions are duties. In a tight financial climate, there may not be enough resources to fund permissive powers. Therefore, that is a diminution of power, by reducing it to a permissive power rather than a duty as a function.
I have already quoted Dame Denise Platt. She said that:
“The principles of public service inspection from the Cabinet Office talk about the need for inspection to generate data and intelligence that enable departments more quickly to calibrate the progress of reform in their sector and to make appropriate adjustment. We think that special studies do exactly that, so we cannot see why that function is watered down.”
She continued—rather vital evidence:
“In our experience, specific reviews are where we bring together a range of intelligence and we ask the next question of the policy or the circumstances. For example, we will publish a report this month on what happens to people who do not meet eligibility criteria in social services. Before Christmas, we published a report on risk and restraint in care homes, and the dilemmas in care that raised for care staff and where the lines should be drawn.”
She carried on:
“It seems to me that the new commission should have the powers and the duties to identify those issues and comment on them as emerging issues, and to identify them themselves rather than in advance seek the agreement of the Secretary of State and go through a whole process that might delay looking at an issue that needs immediate attention.”
I do not think that the Committee will struggle to understand that if there is a delay because of the negotiation process—particularly given that I have made the political point about how this could carry through to the summer of 2010—we would be in the arena of people worrying about political and electoral advantage in advance of the inevitable general election, which has to take place before that date. We can avoid that by following the objective and important advice of Dame Denise Platt.
Her other important point is the need to get on with emerging issues. The more experience we all have in the field of health and social care, as in the rest of life, the more we realise that we do not often get the clarity of certainty until far too late. We get clues. If the expert regulators, above all, get clues, then they need to be getting on with things fast, so that the emerging issues can be identified and sufficient evidence quickly established. That means that, on advice, Governments have the best chance to make the best decisions—if there is anything for Government to do in these matters, rather than simply the enforcement powers granted to a regulator.
Here is an important issue. The suggested amendment is for clarifying the attitude of the Government, so that the new regulator can exercise that power from the start. To coin a phrase, it would be a sunrise clause—rather than a sunset clause—which might also commend itself into parliamentary language. To do otherwise would mean that the new regulator would not be able to carry out any such reports or investigations until the summer of 2010 unless—picking up on the Minister’s words from the previous answer—they were felt to be urgent, having been approved by Government as urgent and necessary during that period. Committee members, I am sure, are fully aware of the value of such reports. In the last six months alone we have had, “A Fair Contract with Older People?”, “A Time to Care?” which looked at domiciliary care and the “Safe as Houses” report into private investment in the social-care market. They provide a strong, independent critique and encouragement of the policies that we are all seeking to bring forward as part of the Bill.
Depending on the Minister’s response, I would like to reserve the right to test the Committee on the amendment. I think that I am right to say that I might want to vote on amendment No. 260, when we reach clause 158. I hope that I have the procedure correct. I would like to make that point clear, which leaves us depending on how the Minister reacts. However, I hope that it is felt across the Committee that this is a point that seriously needs to be borne in mind. We have an opportunity here to make sure that nothing falls through the gaps and that we have done our duty.

Ben Bradshaw: We made it clear in the White Paper and in our response to the consultation on it—indeed, in the Bill—that the first priority for the new Care Quality Commission will be the safety and quality of care in hospitals and other registered health and social care providers. In the light of that, we believed that there should be a phased transition from the current system to the new. That is why we have introduced the provision for the general reviews—those not directly concerned with assurance of acceptable levels of safety and quality—of the UK’s quality commission to kick in a year after the new registration system, which is going to be very important and a very big job, has been fully implemented. I would like to reassure both the hon. Member for Eddisbury and other members of the Committee that transitional arrangements will be put in place to make sure that the commission will still be able to undertake investigations where the commission believes that there is a risk to the health, safety or welfare of people receiving health or social care.
Let me use some recent high-profile examples. The Cornwall learning disabilities investigation is an example of the type of activity that the CQC could get on with straight away, without the year’s delay. The health care-associated infection investigations that have been done at Stoke Mandeville and at Maidstone and Tunbridge Wells are similar, because they are so obviously connected to the quality of care and safety of people. The more general reviews that we are talking about would be general reviews of a service, either throughout the country or in a particular region.
I can assure the hon. Gentleman and other members of the Committee that we are not the slightest bit interested—I hope that we have made this clear; Anna Walker has acknowledged this—in fettering the independence of the commission to conduct the reviews that it thinks it should be able to conduct. We simply want to avoid the hiatus that the hon. Gentleman said that he was worried about in the initial year, and avoid an unnecessary and unreasonable burden on the newly regulated bodies during the period of transition and registration, which will be quite a big process.

Stephen O'Brien: The Minister accepts that we are on to quite a serious matter. Perhaps we should consider it the other way round and he could help us. In what circumstances does he think that the Secretary of State or himself, as the Minister in the forthcoming period, might decline to give approval to the CQC to proceed to undertake an urgent review? It does have to obtain approval. In what circumstances does he envisage using his ministerial authority to decline?

Ben Bradshaw: I am not aware of any example of that happening previously. It would certainly not be within our powers under the Bill to prevent the CQC from conducting an urgent review, as I have made clear. We are, however, keen to avoid the more generalised reviews—non-urgent reviews—in the first year of its existence. If the CQC came to us and said that it was very worried about x, y and z in a certain place and any patterns that might emerge from that across the service that were putting safety and quality of care at risk, it would not be within the powers of the Secretary of State, let alone be his inclination, to prevent the commission from acting.
We are simply trying to send a message to the new regulator that it will have a big job on its hands for the first 12 months in getting the registration system in place. It will have quite a lot of work doing that, and while it is doing that, we want it to concentrate its reviews on the things that are really serious and matter. A burden will also be placed on the bodies and organisations being regulated. If more general reviews were being conducted at the same time, we would be worried about the capacity of the new regulator and of the regulated bodies to cope, but certainly we would expect anything that was important and urgent as the hon. Gentleman described to fall within the commission’s remit right from the start.

Stephen O'Brien: Having listened to the Minister, I shall not resist the clause. I have reserved our position, but I think it fair to point out, given what he has just said about the burden and given that three regulators are coming together, that in the previous discussion we envisaged that almost all the people will arrive in a much bigger organisation, so the capacity to deploy the staff and the expert teams should be there to help to overcome some of the great burdens that will arise in going through the first year, particularly with regard to registrations. One has to bear in mind that this was exactly the position that the CSCI managed in establishing itself. During its first year, it was both carrying out regulation and doing these reports. That was not postponed for a year while it established itself and did its various inspections and regulation.
The point still applies. I accept that the Minister has sought to give some assurance that Ministers would not want to appear in any sense to fetter the independence and autonomy of the regulator, but I can envisage circumstances—that is why we are here, scrutinising the Bill—in which the temptation is almost too great to resist if something particularly difficult is arising. One can envisage meetings that are less of a ministerial nature and more of an inevitably political nature—we all carry both hats—and we need to be conscious of that. Unless I put it on the table specifically, the danger is that if something like that happened, we would be seen to be falling down on our job.
As I said, I reserve our position for a Division on amendment No. 260 when we get to clause 158, but I note that the Minister has taken seriously the points that we have been making and I am grateful for that.

Question put and agreed to.

Clause 44 ordered to stand part of the Bill.

Clause 45 ordered to stand part of the Bill.

Clause 46

Failings by English local authorities

Sandra Gidley: I beg to move amendment No. 78, in clause 46, page 23, line 27, at end add—
‘(6) In considering whether the function referred to in subsection (2) is being discharged to an acceptable standard the Commission shall have particular regard to its duty under section 2(3)(d) of this Act.’.
The clause as a whole deals with failings by local authorities and any special measures that the commission recommends that the Secretary of State should take. To save everybody looking it up, clause2(3)(d) refers to
“the need to safeguard and promote the rights and welfare of children and vulnerable adults”
This morning we heard some examples of concerns about how that might present a conflict in some cases. The specific example given was the case of a care home closure under certain powers. Although we may not think of it in this way, to people in those homes, it is their home. I have had personal experience of the closure of a home, not through any reasons of malpractice but simply because the owner did a runner with the money, and suddenly provision had to be made for the elderly residents. It was difficult for the local authority and it seemed to be a case of slotting the residents into any available space so that the authority had done its duty. No regard was given to the particular needs of the residents.
The amendment is designed to tease out how important this aspect of the Bill is. We are constantly reassured by the Minister that it is on the face of the Bill so it will underpin everything, but there are times when expediency means that action has to be taken quickly and at that stage the human rights aspects are often forgotten. In many ways this is a probing amendment to see whether there is a hierarchy of priorities. The hon. Member for Tiverton and Honiton raised a pertinent example earlier, where a lady with learning difficulties had her wishes completely disregarded. The amendment would ensure that, as a consequence of powers in the Bill, those situations do not arise. The hopes and wishes of all people must be taken into account, but particular care must be taken when those people cannot easily stand up for themselves.

Ben Bradshaw: In response to the specific situation that the hon. Lady described and which we discussed earlier, about a care home having to close all of a sudden, I would point out that clause 2(3)(c) requires the Care Quality Commission to balance its own action against the risk that the action might pose for users. I hope that that goes some way to reassure her, as the commission will have a duty to consider that sort of situation. Clause 2 makes it clear that the commission must pay particular heed to the need to safeguard the rights and welfare of vulnerable people in everything that it does. That clearly applies to the commission’s actions under clause 48. In the light of that, I ask her to withdraw the amendment.

Sandra Gidley: Clause 2(3)(d) refers to “the need to safeguard”, but it is included with a list of other things and the amendment was an attempt to give particular regard to that aspect so that it was at the top of the pecking order when considerations were being made. I do not feel that I will win this one so I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 46 ordered to stand part of the Bill.

Clause 47

Failings by Welsh NHS bodies

Question proposed, That the clause stand part of the Bill.

Jimmy Hood: With this it will be convenient to discuss new clause 15—Failings by English NHS bodies —
‘(1) Following a review under section 42 or 45, or a review or investigation under Section 44, the Commission must inform the Secretary of State if it considers that—
(a) there are significant failings in relation to the provision of health care by or pursuant to arrangements made by an English NHS body,
(b) there are significant failings in the running of an English NHS body, or
(c) there are significant failings in the running of a body, or the practice of an individual, providing healthcare pursuant to arrangements made by an English NHS body.
(2) The commission may also recommend to the Secretary of State that, with a view to remedying those failings, the Secretary of State take special measures—
(a) in a case falling within subsection (1)(a) or (b), in relation to the NHS body concerned
(b) in a case falling within (1)(c), in relation to the body or individual concerned.’.

Sandra Gidley: I want to direct my comments to new clause 15. During the oral evidence sessions, we heard concerns that the commission was able to look at failings by English local authorities. That is in clause 46. There are provisions to look at failings by Welsh NHS bodies. However, it is not clear to me, and it was obviously not clear to the Healthcare Commission, why there is no similar provision to ensure that NHS bodies in England are so covered. I may have missed something somewhere, but the insertion of new clause 15 would make it crystal clear that, whether the problem was with NHS England or Wales, or with local authorities, it would always be dealt with in the same way. I seek the Minister’s reassurance on that point.

Ben Bradshaw: I can give a short or a long explanation. It goes back to the discussion on Tuesday. There could be a cross-border commissioning issue. The service may be commissioned on one side of the border and delivered on another. Is that enough for the hon. Lady?

Sandra Gidley: I am aware of the cross-border issues, but as England does not seem to be included anywhere, I am not sure where that gets us. If England and Wales are included, we presumably need some sort of clause to join the two up. I appreciate that, but it seems that somewhere along the line there is lesser protection in England as a result of the omission. That is what I want to clarify.

Ben Bradshaw: I do not accept that there is lesser protection, but if the hon. Lady insists, I will read the reasons that I have been given by my officials. She can stop me at any time.
Under clause 47 the commission will be obliged to inform Ministers in the Welsh Assembly if the commission encounters serious failings in the running of a Welsh NHS body or health care provided by a Welsh NHS body, or by someone else providing services commissioned by a Welsh NHS body. Although the new commission will only cover health and adult social care services in England, it may come across patients receiving health care in England that has been commissioned by the Welsh NHS. It may also need to review the care being provided by a Welsh NHS body under arrangements made by the NHS in England.
In those circumstances, it is clearly important that the commission is under a duty to advise Welsh Ministers of any failings it encounters either in the provision of health care or the running of services. Patients, of course, draw no distinctions about where they receive care and they expect any problems that are identified to be followed up and addressed regardless of which authority is responsible. The commission will be able to recommend any special measures that it considers appropriate to remedy the failure in question to Welsh Ministers.
Welsh Ministers will continue to be under a corresponding duty, under section 71 of the Health and Social Care (Community Health and Standards) Act 2003, to report failings in English NHS care to the Secretary of State. The proposed clause would require the commission to inform the Secretary of State where it considered that there were significant failings in English NHS bodies. It would also allow the commission to recommend certain measures that the Secretary of State should take where it judges that an English NHS body is failing in the provision of health care. While we have given the commission that role in relation to local authorities and their adult social service functions, in the NHS strategic health authorities in England are responsible for the performance management of primary care trusts and hold them to account.
NHS bodies in Wales will not be subject to registration in the same way as in England. The Care Quality Commission will have the role of publishing independent comparative information on the performance of commissioners. SHAs will then be expected to use that information as part of their performance management of PCTs and to address areas of weak performance. Local authorities, on the other hand, do not have an equivalent body overseeing their work and hence we have kept the provisions allowing the commission to recommend special measures with regard to them.
NHS providers will have to be registered with the commission and will have to comply with regulatory requirements. The commission will be able to intervene directly in poorly performing providers by taking appropriate enforcement action. The new commission will have the ultimate power to de-register. The ability to take direct action represents a significant increase in the regulator’s powers, with a provision allowing the Healthcare Commission to recommend special measures.
In the interests of a fair playing field, all providers should be subject to the same provision. The commission has both the power to intervene directly in a situation where an NHS body is failing and the power to advise the Secretary of State about any concerns it has. Given that, we do not believe that it is necessary to keep the rather weaker power that the commission be able to recommend that the Secretary of State take special measures with regard to the NHS. Therefore, the amendment is not necessary.

Stephen Crabb: I am grateful for the opportunity to discuss clause 47, which deals with the failings of Welsh NHS bodies.
I just about kept up with the Minister’s explanation, but some clarification is needed. It is not obvious how the clause will work in practice. My first observation is on the criteria by which the commission will assess whether there is a significant failing in a Welsh NHS body. The standards in Wales are now different from those in England. I have here the “Healthcare Standards for Wales”. There are 32 standards, detailed criteria that have been developed by Welsh Ministers in the Welsh Assembly. They are the basis on which Welsh Ministers judge the quality of health care provision in Wales. My question to the Minister is, what read-across will there be by the commission from the criteria used in England and the standards and criteria that are already being developed in Wales? If he were to look at the document, which came out two years ago, he would read that at that time the Assembly was developing integrated health and social care standards for Wales.
My other observation is about the strength of the duty that will be on the commission in terms of its reporting of failings in Welsh NHS bodies. Looking back to clause 46, which deals with failings identified in English local authorities, there is a duty both to inform the Secretary of State and to make a recommendation about special measures in terms of remedial action. In clause 47 there is no corresponding duty to make a recommendation. That seems to be optional in subsection (2), which says that the commission “may” make recommendations. My understanding of the clause is that Welsh Ministers are at liberty to ignore any recommendations made by the commission in terms of failures identified during reviews or investigations.
I would therefore welcome a bit more explanation from the Minister about how the clause will work in practice. The explanatory notes accompanying the Bill were not very helpful in that regard—merely five or six lines summarising the clause. I would like some assurance from the Minister that serious thought has gone into how the interface will work between the default Administration in Cardiff and his Department here in England, in terms of making the Bill a success.

Stephen O'Brien: If ever we needed proof that there is great benefit in having a Member who represents a Welsh constituency on the Bill we have just heard it. That is absolutely vital because he is a better test of understanding than someone who happens to represent an English constituency with a Welsh border, with patients freely flowing between the two constituencies. There has been a very public and major dispute between the Countess of Chester hospital and the Flintshire local health board about funding for patients coming from Wales to be treated by the NHS in England. They settled on £1 million on the prospect of future flows, but that is still way short of the true recovery costs. Those are real problems.
My hon. Friend the Member for Preseli Pembrokeshire made an important point about ensuring that the proposal is thoroughly thought through, not just at the conceptual level but deeply at the practical level, given that there are two different sets of political accountabilities. The Minister should bear in mind the practicalities and the difficulties. I am an English MP who frequently has to ask the Secretary of State for Wales—when he has that one of his two hats on, assuming that he will continue in the post in any case—about matters in Wales. When I seek to question him, he refers me immediately to the First Minister, and the First Minister says, “I have absolutely no need, right or intention to answer you. You are an English MP, and I have no accountability to you. Go hang.”
That is how it works. We have an absence of accountability, hence my hon. Friend’s germane points. I hope that the Minister will have an opportunity to ensure that we can set our minds at rest. Otherwise, we could be off to a rocky start.

Ben Bradshaw: Clause 64 requires the Care Quality Commission and the Welsh Government to co-operate, and that co-operation, which has been good in respect of the formulation of the Bill, will continue. I shall come to Government amendments in that regard in a moment.
The commission will not judge Welsh standards. It has only an English remit, but of course it will co-ordinate with the Welsh authorities to satisfy itself that provision which may be commissioned cross-border meets the quality and safety requirements that it would expect for English patients. If the hon. Member for Preseli Pembrokeshire would like a detailed exposition in the form of a letter as to how we expect that to work in practice, I will happily provide it for him.
It would be up to the commission to decide whether it wanted to judge the quality of a service being provided against its own or Welsh criteria. We would not want to tie its hands in that regard. Based on that, I hope that the hon. Lady will not press the new clause to a Division.

Sandra Gidley: It was necessary to have that long explanation. It was informative, and it is useful to have it on the record because some of what the Minister said had not been clear prior to that explanation. I appreciate that the Committee is a bit tight for time, but I think that that was a good use of it. As the explanation was detailed, I shall review his words and not press my new clause to a Division.

Question put and agreed to.

Clause 47 ordered to stand part of the Bill.

Clause 48

Transfer and amendment of functions under Mental Health Act 1983

Stephen O'Brien: I beg to move amendment No. 166, in clause 48, page 24, line 18, at end insert—
‘(j) Section 121(5) (visiting and inspection of records),
(k) Section 121 (7) (review decision to withhold post),
(l) Section 121 (8) (review decision to withhold any part of post).’.
The amendment would ensure that the Care Quality Commission retains the same powers as the Mental Health Act Commission in respect of visiting and inspecting records, and reviewing decisions to withhold post. The Minister stated that
“visiting powers are retained in the Bill as far as the existing visiting powers of MHAC are concerned”
as the changes to section 120 do not excise the responsibility for visiting. He also stated that
“we envisage that, in areas of particular concern to MHAC, visits would continue with their current regularity.”——[Official Report, Health and Social Care Public Bill Committee, 10 January 2008; c. 123.]
The qualifying statement
“in areas of particular concern”
is of particular concern to me. Unless the Minister can give us a cast-iron guarantee that visits will be reduced only because of the CQC’s judgment of its responsibilities to those detained under Mental Health Act 1983, and never because of simple financial constraints, there will remain a genuine concern for all members of the Committee. As was transparent in the oral evidence sessions, there is a major need for us to respect the enormous benefit of the work of the Mental Health Act Commission, particularly with those who are detained. That came through loud and clear. We must ensure that there is no change and that its judgment carries through to the CQC instead of being supplanted, diluted, qualified or in any way watered down by anybody else having involvement or a contrary or complementary judgment.
On the point about post, and to avoid a lengthy debate on schedule 3, which we shall consider next, I note that paragraph 12 of schedule 3 adds new section 134A to the Mental Health Act 1983, which itself deals with post in sections 121 and 134. What does the proposed new section add to that Act? With that comment, I hope to curtail what might otherwise be a lengthy discussion on schedule 3. I hope that the Minister will address the matter.

Greg Mulholland: The Committee heard a clear explanation of MHAC’s concerns about setting up the new commission and whether its powers will be carried through. We are all aware that there are mental health issues to consider, and we all share the concern that they are addressed and not watered down, to use the hon. Gentleman’s words. We support the amendment and feel that it raises an important point. We look forward to hearing what the Minister says.

Ben Bradshaw: I understand the intention behind the amendment, but I hope to explain to the hon. Member for Eddisbury why we think that it is unnecessary and that the matters that it addresses are already provided for.
The amendment would transfer certain functions currently carried out by the Mental Health Act Commission to the body that replaces it, the Care Quality Commission. Those functions are the visiting of patients and inspection of their records, and the reviewing of decisions to withhold the mail of patients detained in high-security hospitals. However, schedule 3 already gives those functions to the CQC. As we made clear in other sittings, the commission is bound to follow the Mental Health Act role.
On the frequency of visits, I can give the hon. Gentleman the assurance he seeks. It will be a matter entirely for the new commission, and not negotiable. It is a statutory role and we will not seek to interfere in that decision making.
On letters, paragraph 12 of schedule 3 amends the 1983 Act by inserting new section 134A. Section 134 provides for the incoming and outgoing mail of patients detained in high-security hospitals to be examined and withheld in specified circumstances. New section 134A will require the Care Quality Commission and Welsh Ministers to review any decision to withhold mail in those circumstances in response to an application to do so. It will also give the Secretary of State and Welsh Ministers the power to make regulations in connection with such an application. New section 134A is equivalent to powers that already exist in section 121 of the 1983 Act, which is being repealed.

Stephen O'Brien: I have been mildly surprised by the Minister’s reassurance. I was moving towards pressing the amendment to a Division, but in the light of what he has said I am happy to withdraw it. I hope that there is some sense of the need to ensure, when the guidelines are issued, that the exchange that we have just had might be incorporated in them as an addendum to ensure that the Committee’s joint intentions are clear to those who follow on from the excellent practice currently performed by the Mental Health Act Commission. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 48 ordered to stand part of the Bill.

Schedule 3 agreed to.

Clause 49 ordered to stand part of the Bill.

Clause 50

Studies as to economy, efficiency etc.

Stephen O'Brien: I beg to move amendment No. 35, in clause 50, page 25, line 21, leave out ‘Commission’ and insert ‘Independent Regulator of Foundation Trusts’.

Jimmy Hood: With this it will be convenient to discuss the following amendments: No. 36, in clause 50, page 25, line 36, leave out ‘Commission’ and insert ‘Independent Regulator of Foundation Trusts’.
No. 37, in clause 50, page 25, line 43, leave out ‘Commission’ and insert ‘Independent Regulator of Foundation Trusts’.
No. 38, in clause 51, page 26, line 2, leave out ‘Commission’ and insert ‘Independent Regulator of Foundation Trusts’.

Stephen O'Brien: I hope that the Committee feels duly excited by the fact that we have turned a page on the selection list.
The amendments would place the studies into efficiency and economy within the remit of Monitor instead of the commission. Amendment No. 38 is consequent on clause 51 requiring the studies to be published. I do not need to reiterate last week’s debate on clause 2 and amendment No. 6, or the one that we had earlier today on clause 42 and amendments Nos. 30 and 31. I hope that the Minister feels more favourable towards the tremendous work that Monitor will be able to offer, given that these points have come up consistently during the course of our consideration of the Bill. Furthermore, I hope that he recognises the distinction in its expertise in and attitude towards economic regulation, as well as the other aspects of regulation that we have looked at.

Greg Mulholland: Without getting into the substantive issue, there is a clear need to clarify the apparent duplication, which is what the hon. Gentleman is teasing out. It is a genuine concern that the Government must try to resolve. I look forward to the Minister’s comments.

Ben Bradshaw: The amendments would remove the function of undertaking studies into economy and efficiency from the new Care Quality Commission. That returns to our earlier discussions about the extension, or otherwise, of the role of Monitor. I shall deal with that matter in some detail now, because it is a sensible point at which to do so.
As I have argued before, the amendments would considerably widen the scope of Monitor, which is currently only a regulator of NHS foundation trusts. As I am sure that the Committee knows, Monitor has no role in regulating adult social care, commissioners or other NHS health care providers. The Care Quality Commission on the other hand will be a regulator of both health and adult social care, and so the regulation of the NHS is only a part of its work.
There is a need for a commission that can take a completely independent view of whether health and adult social care providers, including NHS foundation trusts, meet essential safety and quality requirements and impose tough sanctions when they fail to do so. As we set out in our consultation on the future regulation of health and adult social care in England, that is a very different role from that performed by Monitor, which has a specific role in ensuring that NHS foundation trusts are well managed and financially strong, with statutory powers to intervene should they be in breach of their terms of authorisation. Having greater autonomy than other NHS bodies, NHS foundation trusts require Monitor’s specific regulation to ensure good value for money for the taxpayer from public assets.
By contrast, it will be important that the Care Quality Commission can take a consistent view of the safety and quality of care across all types of provider, including NHS foundations trusts. The wider scope proposed for Monitor by the amendment would serve to distract Monitor from its current, vital, specific focus, which is on foundation trusts. It would therefore be quite difficult for it to have a function of undertaking studies in relation to other NHS bodies and English local authorities. I would go so far as to say that Monitor may not necessarily be considered a fully disinterested party if it were to carry out reviews of economy, efficiency or effectiveness in other organisations while having a specific role in authorising, monitoring, regulating and driving forward foundation trusts.
Given those considerations, the function of undertaking the kind of studies described in clause 50, and the publication of the results and recommendations arising from them, should sit squarely with the Care Quality Commission rather than Monitor. In that light, although I do not expect him to do so, I ask the hon. Member for Eddisbury to withdraw the amendment.

Stephen O'Brien: I am please to be able to give him some pleasure. I will withdraw the amendment on the basis that we have had an outing on the matter before and we know where we stand. As we go consistently through the Bill it is important to recognise how this interleaves, so those considering our deliberations either on Report or in another place will be able to pick up the threads. I have a modicum of confidence that some light may come onto the issue as the Bill progresses and the merits of Monitor’s involvement may surface. On that basis, I beg to ask leave to withdraw the amendment.

Amendment, by leave, with drawn.

Clause 50 ordered to stand part of the Bill.

Clauses 51 to 55 ordered to stand part of the Bill.

Clause 56

Inspections

Stephen O'Brien: I beg to move amendment No. 39, in clause 56, page 27, line 35, at end insert—
‘(aa) the provision of independent healthcare,’.

Jimmy Hood: With this it will be convenient to discuss the following amendments: No. 40, in clause 67, page 32, line 31, leave out
‘paid for out of public funds’.
No. 41, in clause 67, page 32, line 33, leave out
‘paid for out of public funds’.

Stephen O'Brien: The amendment seeks to enable the CQC to inspect independent health care, a point touched on earlier by others on other amendments. Amendments Nos. 40 and 41 amend clause 67(4), which limits regulations under that clause to health and social care schemes paid for out of public funds only. The amendments seek to broaden it to all health and social care schemes and the clause makes provision for the commission to make arrangements with Ministers of the Crown to inspect health and social care facilities within their remit. The obvious example is health care provided through the defence budget. That is a useful example to have in mind. On amendment No. 39, we need to ask why the Bill limits the inspection to NHS bodies. On amendments Nos. 40 and 41, I understand that that is in regard to other Ministers of the Crown, It might be helpful if the Minister could outline which ones. I assume that they are the Defence and Foreign Ministers. Why is it limited to health care paid for out of public funds? Presumably, that has something to do with departmental budgets or allocations. That is the sum of the purpose of the amendments.

Sandra Gidley: We have cantered around this subject in other parts of the Bill. I wish the hon. Gentleman better luck in having his amendments accepted than we have had so far. I cannot stress how strongly I am beginning to feel that we have to ensure that other forms of health care are included in some way. I fully support the amendments.

Ben Bradshaw: I am going to have to disappoint the hon. Lady again. We believe that clause 56 sets out clearly the purposes for which the Care Quality Commission may carry out inspections. On that basis I do not think that the amendment is necessary. It is interesting to have the spokesman for the Opposition advocating from a sedentary position even more regulation of private transactions between individuals. That is an interesting position. The intention behind the amendment is met by clause 56(1)(a), which allows the commission to carry out inspection of
“the carrying on of a regulated activity,”
by any care provider registered with the Care Quality Commission.
Clause 67 enables the Care Quality Commission to make arrangements with another Minister of the Crown. Under an agreement with the relevant Minister, that clause allows for the commission to perform any of its functions in relation to a specific prescribed health or social care scheme paid for by public funds or to provide relevant services or facilities that that Minister may require in relation to such a scheme. Amendments Nos. 40 and 41 would extend that power to schemes that are not paid for from public funds.
Clause 67 is intended to allow the commission to share its skills, expertise and know-how for the good of another public sector service—the hon. Member for Eddisbury has mentioned a couple—falling under the remit of another Department. For example, the commission might make arrangements with the Secretary of Sate for Defence to review the quality of health care provision for the armed forces. We have been in active discussion with the Ministry of Defence and the Healthcare Commission about that. The commission will also have powers, set out in paragraphs 8 and 9 of schedule 4, to act jointly with or advise and assist other public authorities. The crucial difference is that the powers in clause 67 allow the commission to carry out activity on behalf of another Department.
Carrying out an activity or lending resource to another body is a more significant step than simply providing advice or carrying out an existing function jointly and, as such, has the potential to distract resources, priority and management focus from the commission’s core functions. That should be done only where there is a clear public benefit.

Stephen O'Brien: I understand where the Minister is going and I am possibly satisfied in respect of the other Departments. He mentioned clause 56(1)(a), which deals with
“the carrying on of a regulated activity”
and encompassed some of my concerns. Will he just clarify whether that relates only to regulated activities provided by public bodies or could it cover privately produced regulated activity, in which case my point is met?

Ben Bradshaw: As we have said time and again, any provider that is regulated will be required to meet the requirements set out in that regulation—so that would include independent providers. My difference with the Liberal Democrats is that they seem to want us to intervene on purely private transactions between individuals. Any registered provider would be required to meet the standards laid down in regulation.

Stephen O'Brien: I will reflect on our exchange and ensure that if my point has not been met, we find another way of bringing it up again, but at this point I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 56 ordered to stand part of the Bill.

Clause 57

Inspections carried out for registration purposes

Sandra Gidley: I beg to move amendment No. 239, in clause 57, page 28, line 23, leave out ‘may’ and insert ‘must’.
This is a simple probing amendment. As the Bill stands,
“The Commission may publish a report prepared under subsection (2).”
I am curious about the circumstances under which a report would not be published. To my way of thinking, the more information in the public domain the better and the greater the transparency of any organisation, the greater the public trust in it. All reports should be published. However, subsection (3) seems to give some flexibility. I am not sure why that is needed. I seek an example from the Minister of where it would not be necessary to publish a report. It would be helpful to know why the word “may” was chosen.

Ben Bradshaw: This is a point on which I may at last be able to offer the hon. Lady some satisfaction. Although, under existing legislation, the CSCI and the Healthcare Commission are not explicitly obliged to publish inspections reports, in practice they do. However, they are careful at times about some details: we talked earlier about children and vulnerable adults. I agree that it is essential that the public should have access to the commission’s inspection findings: a concern also raised by Dame Denise Platt in her evidence to the Committee. We are therefore looking at whether there is an argument for strengthening the language in that regard.

Sandra Gidley: I am reassured by the Minister and have no desire to have an amendment achieved in my name. If the Government want to bring something forward that achieves that aim on a future occasion, I will be more than delighted. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 57 ordered to stand part of the Bill.

Clauses 58 to 59 ordered to stand part of the Bill.

Clause 60

Power to require documents and information etc.

Question proposed, That the clause stand part of the Bill.

Stephen O'Brien: The clause deals with the power of the commission to require documents and information. I want to ask the Minister, in the light of events across Government that are both topical and recent, what guarantees he can give that data collected under the powers in the clause will be kept securely and is the Secretary of State ultimately liable?

Ben Bradshaw: No, the hon. Gentleman will know that health managers are statutorily responsible for complying with data protection laws. I am sure that he follows these issues closely and will know that the data protection rules governing health data, because of their sensitive nature, are much stronger and more securely held and, indeed, have sometimes been criticised for being too difficult to access. That will remain the case under the clause.

Question put and agreed to.

Clause 60 ordered to stand part of the Bill.

Clause 61 ordered to stand part of the Bill.

Clause 62

Interaction with other authorities

Question proposed, That the clause stand part of the Bill.

Jimmy Hood: With this it will be convenient to take Government new clause 13—Avoidance of unreasonable burdens in exercise of regulatory powers.

Ben Bradshaw: The new clause and the amendments that we debated earlier were requested by Welsh Ministers in relation to care provided in Wales registered under the Care Standards Act 2000, which will not fall under the scope of the new Care Quality Commission because it will only operate in England. Welsh Ministers wanted to take the opportunity to introduce enforcement powers for Wales that mirror many of those that the Bill proposed for the Care Quality Commission in England and said that they wanted a little more time to consider the full implications of that. That is why I regret having to bring in the new clause now. Having done so, they have asked me to put forward this new clause.

Stephen O'Brien: I can see that the Minister has had precious little in the way of options if the discussions with Welsh Ministers are on that time track. This is the first of the Government amendments that we have reached during the course of the Committee’s considerations and is one of some 60 amendments. Clearly, anything to mitigate the burden of regulation would, in principle, have my support. It would be helpful, however, at this first outing, when there are implications for Welsh Ministers and the progress of discussions with Welsh Ministers, if he could tell us whether those discussions have concluded or are ongoing, so that we can have full knowledge of what to expect concerning that in Government amendments and new clauses. I am sure that he would accept that we have not had the dovetailing we might have hoped for.

Ben Bradshaw: They have.

Question put and agreed to.

Clause 62 ordered to stand part of the Bill.

Schedule 4 agreed to.

Clauses 63 to 67 ordered to stand part of the Bill.

Clause 68

Arrangements with northern ireland ministers

Question proposed, That the clause stand part of the Bill.

Stephen O'Brien: The clause will enable Northern Ireland Ministers to make use of the CQC and inspection on agreed terms, and it would be helpful for us to understand the income that the Minister envisages the CQC deriving from such arrangements. If he does not have the answer in his briefing, I am sure that the Committee will be happy to see it later.

Ben Bradshaw: I shall have to write to the hon. Gentleman about that.

Question put and agreed to.

Clause 68 ordered to stand part of the Bill.

Clause 69

Inquiries

Stephen O'Brien: I beg to move amendment No. 42, in clause 69, page 33, line 27, leave out subsection (6).

Jimmy Hood: With this it will be convenient to discuss amendment No. 43, in clause 69, page 33, line 28, at end add—
‘(7) In such cases as the inquiry is held in private under subsections (2) or (3), the Secretary of State shall make a statement to Parliament.
(8) In such cases as the Secretary of State deems publication inappropriate under subsection (5), he shall make a statement to Parliament.’.

Stephen O'Brien: The amendments would remove from the Secretary of State the decision on the appropriateness of publication, and ensure that Parliament was informed in cases where inquiries are held in private or publication is withheld. It would aid the Committee if the Minister gave examples of when the Secretary of State would direct that an inquiry be held in private, or when publication might be inappropriate. I note that being prejudicial to an ongoing criminal investigation is an example, but in that case, the power should be to delay rather than to prevent publication. Perhaps the Minister will clarify that, in that case, “delay” might have been a more judicious word than “prevent”, which seeks not to have an out-date, as it were.
There are no checks or balances if the Secretary of State chooses to use the power to suppress inquiries that might carry political unpleasantness. Although I make no aspersions on that count, the issue must be raised, because as a matter of scrutiny in Committee, we should take every opportunity to ensure that we do not leave loopholes of which neither I nor the Minister would be proud.

Greg Mulholland: Last time, I was caught out by the brevity of the hon. Gentleman’s contribution, so I am on my toes this time. He seemed to get through at an excellent pace, and it was a very brief contribution.
Subsection (6) includes the phrase,
“in such manner as the Secretary of State considers appropriate,”
which sends shivers down the spines of many of us who believe in proper scrutiny. It could mean anything, and it is inappropriate to include such a woolly phrase in the Bill. The purpose of the amendments, which the Liberal Democrats fully support, is to include in the Bill appropriate occasions of parliamentary scrutiny, when the Secretary of State shall make a statement. I look forward to what the Minister has to say. The phrase that I have quoted is inappropriate, which is why we support amendment No. 42. The clear and succinct inclusion in the Bill of the occasions when a statement should be made to Parliament would be appropriate.

Ben Bradshaw: The subsection mirrors the provision in existing legislation for the Healthcare Commission and CSCI. The hon. Member for Eddisbury has already alluded to examples of why it might be necessary for an inquiry to be held in private, such as to ensure that a police investigation or criminal proceedings are not hindered or jeopardised.
On the hon. Gentleman’s question about checks and balances, a decision by the CQC to use publicity if it is concerned that something is being undesirably suppressed will be a fairly powerful check and balance. Hitherto, that has not happened and I do not see why it should, but if it did, the CQC will be in a position to cause extreme embarrassment to anyone who is in government at the time.

Stephen O'Brien: The Minister envisages that the CQC’s power to make public its concerns—effectively, it has the power to embarrass—will be a very good sanction, and I agree that it is a powerful one. He did not address the issue of whether “delay” is a better word than “prevent”, but that point is on the record and we can think about it in future. It certainly does not merit pressing the amendment to a Division, so I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 69 ordered to stand part of the Bill.

Clauses 70 to 73 ordered to stand part of the Bill.

Clause 74

Code of practice on confidential personal information

Question proposed, That the clause stand part of the Bill.

Stephen O'Brien: Yet again we are dealing with confidential personal information. In response to the previous point made on that issue, the Minister sought to pray in aid the fact that the controls over highly sensitive personal health information were even more stringent than in other areas. I simply seek reassurances and guarantees that when information is in the hands of the Government, Government agencies or related bodies, they recognise and take responsibility for its security, given recent events.

Question put and agreed to.

Clause 74 ordered to stand part of the Bill.

Clause 75

Publication of programme of reviews etc.

Stephen O'Brien: I beg to move amendment No. 44, in clause 75, page 37, line 6, at end add—
‘(5) Subsection (2) does not confer on the Secretary of State the power to prevent the Commission conducting reviews.’.
Under clause 75, the commission
“must...prepare and publish a document setting out”
the reviews it proposes to undertake. Subsection (2) provides that
“the Commission must consult...the Secretary of State”
on the document. The amendment would prevent the Secretary of State from using the consultation as an opportunity to block certain reviews.
The clause highlights the privileged position of the Secretary of State in relation to the commission. It must be patent by now that we have sought to remove the Secretary of State’s powers in order to make the CQC a genuinely and transparently independent body. I have just one question for the Minister: what is the purpose of consultations under subsection (2), and could the clause be used by the Secretary of State to block reviews, however necessary people feel them to be?

Ben Bradshaw: I simply reiterate what I said earlier. The CQC will be completely unfettered in its decisions to undertake reviews in the circumstances that I described.
The amendment would not have any practical effect, because the Secretary of State has no power to prevent the commission from conducting reviews. The amendment seems to refer to the requirement for the CQC to publish in advance its work programme for the more general reviews that it intends to undertake during a specific period. That is a sensible requirement, not least because that way, the organisations concerned will have some idea about the CQC’s work programme. It can formalise its business planning processes—an exercise that already takes place under the existing system to help managers administer burdens of regulation on front-line service providers. The requirement to consult will also ensure dialogue between the commission and the Secretary of State. However and as I have made absolutely clear, important, urgent reviews—or those that the CQC considers urgent in fulfilling its duty on quality and safety—would be completely unfettered and could be undertaken without consultation with anyone.

Stephen O'Brien: I am happy to rely on what the Minister has said and I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 75 ordered to stand part of the Bill.

Clauses 76 to 78 ordered to stand part of the Bill.

Clause 79

Fees

Stephen O'Brien: I beg to move amendment No. 46, in clause 79, page 38, line 33, leave out ‘specified factors’ and insert ‘factors specified by regulations’.
As we gallop towards schedule 5, we just have to rein in a touch on amendment No. 46. Subsection (1) of the clause enables the commission from time to time to make provisions for fees to be paid in various circumstances. Our amendment would give Parliament sight of the factors on which the amount of a fee would be determined. There is a wider principle about fees and whether Parliament should vote not only on the fee-making powers, but the level of the fees charged. One recent example of the potential impact of such a power comes from the palliative care sector.
The Government have set the Healthcare Commission, along with all other regulators in England, a requirement to recover the full costs of regulation from fees by the 2008-09 financial year. In the past, fees for hospices have been at discounted rates. In 2006-07, the Healthcare Commission froze fees for regulating hospices and type 3 hyperbaric chambers that are used inter alia to combat the side effects of some cancer treatments, and by voluntary multiple sclerosis treatment centres for MS sufferers. From April 2007, it reduced fees by 22 per cent. for hyperbaric chambers and slowed down significantly the planned phasing out of existing subsidies for hospices, with most fees frozen for the second year running.
The Healthcare Commission is working from a principle that the fees should reflect the actual costs of regulation, not what establishments can afford to pay. Fees are therefore highest for those establishments that are unable to provide assurance of standards and need frequent check-ups, and lowest for those that need the least intervention. The commission notes that it consulted on that approach and received strong support, including from voluntary organisations. However, in its briefing on the subject, it says that it believes
“that if a special case were to be made for voluntary organisations’ fees, it would be for democratic Government—not the regulator—to decide that public funds or other establishments’ fees should be used to subsidise them”.
It continues to say, however, that it acknowledges
“that voluntary organisations and small businesses feel the impact of a fixed overhead such as regulatory fees more acutely than large businesses”.
I am sure that we all say “Hear, hear” to that. It goes on:
“Our fees schemes take this into account”.
Under the planned increases for 2007-08, the Healthcare Commission is proposing charge increases for hospices with four or more beds, involving a frozen fee set at £2,376. A hospice with, for example, three in-patient beds, would see the burden of costs rise from the current total of £907—the registration fee plus the flat rate for inspection costs—to £2,213. That is far more than double, encompassing the doubling of the registration fees for small hospices, plus the new increased flat-rate inspection fee and the removal of the exemption from the charge per bed for hospices with fewer than four beds. Therefore, the impact on smaller hospices is disproportionate and seems to run counter to the commission’s stated goal of finding a balance between full cost recovery and affordability for voluntary organisations.
Furthermore, in response to a written parliamentary question asked by my hon. Friend the Member for Macclesfield (Sir Nicholas Winterton) in February last year, the Chief Secretary to the Treasury, who was then a Health Minister, said:
“We have made no assessments in connection with the regulatory fees hospices pay the Healthcare Commission.”—[Official Report, 28 February 2007; Vol. 457, c. 1425W.]
In my view, that suggests a disturbing lack of ministerial accountability and parliamentary control in the fee-charging arrangements. It is not that it is coarse for us to fix the charge of the precise fees, but the concept of trying to minimise the burden on the smaller organisations, particularly the voluntary organisations that are doing such valuable work, and also of trying to establish a fairer arrangement, rather than a financially driven arrangement, seems to be an area where we as parliamentarians can set the appropriate parameters.
Therefore, I hope that the Minister will address the following questions. First, can he confirm that he does not expect the fees to deviate wildly from those currently levied by the regulatory bodies? Secondly, can he confirm the unfortunate increase in the regulatory burden on smaller hospices? Thirdly, what assessment has he made of the Healthcare Commission’s contention that it is for democratic Government to make the case for public funds or other establishments’ fees being used to subsidise voluntary organisations’ fees? Finally, where would he see the power of Parliament in relation to that contention?
I hope that that is a clear outline of the concern that arises as a result of clause 79. The amendment that we have tabled is to enable the Minister to give some insight and also to ensure that those who have to deal with this Bill have the platform of fairness as well as that of practicality going forward.

Ben Bradshaw: I accept that it is important that there are safeguards in place to ensure that the fee levels set are reasonable and proportionate; I also accept that that is the aim of this amendment. However, we believe that there are already a number of safeguards in place in the clause. For example, although the commission will be able to choose what approach it takes to charging fees, which I think is absolutely right—we are keen to ensure that the commission remains independent—those fees will need to be approved by the Secretary of State. The commission will also have to consult before making provision about fees. The Secretary of State may also make regulations to provide for matters that the commission should take into account when setting the fees. Finally, the clause allows the Secretary of State to create regulations making alternative provision about fees to replace that made by the commission in the unlikely scenario that we think that the commission has exercised, or is proposing to exercise, its power inappropriately. Given all those safeguards, I hope that the hon. Gentleman may acknowledge that the amendment is not necessary.

Stephen O'Brien: I am not going to detain the Committee by asking us to divide, because I think that this exchange itself has been useful. If there are any further points to be made about the clause that can help to clarify matters for those who must deal with it in the future, I am sure that that is something that we can come back to on Report or in another place. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 79 ordered to stand part of the Bill.

Clauses 80 to 84 ordered to stand part of the Bill.

Clause 85

Offences by the body corporate

Question proposed, That the clause stand part of the Bill.

Stephen O'Brien: I have one question for the Minister. The clause deals with offences by bodies corporate. Under subsection (3)(b), members of NHS bodies can be liable. Does that include all members of NHS foundation trusts?

Ben Bradshaw: Yes.

Question put and agreed to.

Clause 85 ordered to stand part of the Bill.

Clause 86

Unincorporated associations

Question proposed, That the clause stand part of the Bill.

Stephen O'Brien: I make exactly the same point, but in this case rather than members of NHS foundation trusts I ask the Minister whether the provision includes all members of unincorporated associations. This question may possibly be a touch more difficult.

Ben Bradshaw: I shall have to write to the hon. Gentleman.

Question put and agreed to.

Clause 86 ordered to stand part of the Bill.

Clauses 87 to 89 ordered to stand part of the Bill.

Schedule 5

Further amendments relating to Part 1

Ben Bradshaw: I beg to move amendment No. 248, in schedule 5, page 122, line 38, leave out sub-paragraph (2) and insert—
‘(2) For subsection (3A) substitute—
“(3A) But the functions which may be so specified do not include functions of making, confirming or approving subordinate legislation (as defined by section 158(1) of the Government of Wales Act 2006).”’.

Jimmy Hood: With this it will be convenient to discuss Government amendments Nos. 179 to 194 and Government amendment No. 178.

Ben Bradshaw: Amendment No. 248 relates, as I mentioned earlier, to the requests of Welsh Ministers. It puts in place new powers for Welsh Ministers in relation to the Care Standards Act 2000.

Stephen O'Brien: The best that the Opposition can do in relation to these amendments is to note them. They are obviously the result of discussions and negotiations. The only thing that concerns us is to ensure that, as we consider the inter-relationship with what is going to happen under the auspices of Welsh Ministers, the Minister keeps in mind the fact that we will be perpetually seeking reassurances about the consistency of approach between Wales and England. He is more than well aware that it is a genuinely live issue. It is not only to do with things being better on one side of the border, or the other. It will have a real effect for those who represent constituencies on the border between Wales and England. It would be helpful to get it right, as we would all be dealing with fewer of the cases on border inconsistencies that tend to fill our surgeries. On that basis, I am happy to note the Government amendments.

Amendment agreed to.

Amendments made: No. 179, in schedule 5, page 123, line 16, at end insert—
“14A Suspension of registration
(1) The Welsh Ministers may at any time suspend for a specified period the registration of a person in respect of an establishment or agency for which the Welsh Ministers are the registration authority.
(2) Except where the Welsh Ministers give notice under section 20B, the power conferred by subsection (1) is exercisable only on the ground that the establishment or agency is being, or has at any time been, carried on otherwise than in accordance with the relevant requirements.
(3) The suspension of a person’s registration does not affect the continuation of the registration (but see sections 24A and 26 as to offences).
(4) A period of suspension may be extended under subsection (1) on one or more occasions.
(5) Reference in this Part to the suspension of a person’s registration is to suspension under this section, and related expressions are to be read accordingly.
(6) In this section “relevant requirements” has the same meaning as in section 14.”’.
No. 180, in schedule 5, page 123, line 17, at end insert—
‘(za) in subsection (1), at the end of paragraph (b) insert “or—
“(c) for the cancellation of, or the variation of the period of, any suspension of the registration.”’.
No. 181, in schedule 5, page 123, line 18, leave out from ‘(3)’ to end of line 19 and insert—
‘(i) after “(a)” insert “or (c)”, and
(ii) for the words from “a fee of—” to the end substitute “a fee of the prescribed amount”,’.
No. 182, in schedule 5, page 123, line 19, at end insert—
‘(ab) after subsection (4) insert—
“(4A) If the Welsh Ministers decide to grant an application under subsection (1)(c), they must serve notice in writing of their decision on the applicant (stating, where applicable, the period as varied).”, and’.
No. 183, in schedule 5, page 123, line 26, at end insert—
‘14A In section 17 of the 2000 Act (notice of proposals)—
(a) in subsection (4), after “section 20” insert “or 20A or gives notice under section 20B”,
(b) after paragraph (a) of that subsection insert—
“(aa) to suspend the registration or extend a period of suspension;”, and
(c) in subsection (5), after “(a)” insert “or (c)”.
14B In section 19 of the 2000 Act (notice of decisions), in subsection (4)—
(a) omit the word “and” at the end of paragraph (b), and
(b) after that paragraph insert—
“(ba) in the case of a decision to adopt a proposal under section 17(4)(aa), state the period (or extended period) of suspension; and”.’.
No. 184, in schedule 5, page 123, line 27, leave out paragraph 15 and insert—
‘15 (1) Section 20 of the 2000 Act (urgent procedure for cancellation etc) is amended as follows.
(2) In subsection (1)—
(a) after “If” insert “in respect of an establishment or agency for which the CIECSS is the registration authority”,
(b) in paragraph (a), for “the registration authority” substitute “the CIECSS”, and
(c) in sub-paragraph (i) of that paragraph, for “an” substitute “the”.
(3) In subsection (3), for “the registration authority” substitute “the CIECSS”.
(4) In subsection (5), for “the registration authority” substitute “the CIECSS”.
(5) For subsection (6) substitute—
“(6) For the purposes of this section the appropriate authorities are—
(a) the local authority in whose area the establishment or agency is situated; and
(b) any other statutory authority whom the CIECSS thinks it appropriate to notify.”
(6) Accordingly, for the heading of section 20 substitute “Urgent procedure for cancellation, variation etc: England”.’.
No. 185, in schedule 5, page 123, line 31, at end insert—
‘15A After section 20 of the 2000 Act insert—
“20A Urgent procedure for cancellation: Wales
(1) If in respect of an establishment or agency for which the Welsh Ministers are the registration authority—
(a) the Welsh Ministers apply to a justice of the peace for an order cancelling the registration of a person in respect of the establishment or agency, and
(b) it appears to the justice that, unless the order is made, there will be a serious risk to a person’s life, health or well-being,
the justice may make the order, and the cancellation has effect from the time when the order is made.
(2) An application under subsection (1) may, if the justice thinks fit, be made without notice.
(3) As soon as practicable after the making of an application under this section, the Welsh Ministers must notify the appropriate authorities of the making of the application.
(4) An order under subsection (1) is to be in writing.
(5) Where such an order is made, the Welsh Ministers must, as soon as practicable after the making of the order, serve on the person registered in respect of the establishment or agency—
(a) a copy of the order, and
(b) notice of the right of appeal conferred by section 21.
(6) For the purposes of this section the appropriate authorities are—
(a) the local authority in whose area the establishment or agency is situated,
(b) the Local Health Board in whose area the establishment or agency is situated, and
(c) any statutory authority not falling within paragraph (a) or (b) whom the Welsh Ministers think it appropriate to notify.
(7) In this section “statutory authority” has the same meaning as in section 20.
20B Urgent procedure for suspension or variation etc: Wales
(1) Subsection (2) applies where—
(a) a person is registered under this Part in respect of an establishment or agency for which the Welsh Ministers are the registration authority, and
(b) the Welsh Ministers have reasonable cause to believe that unless they act under this section any person will or may be exposed to the risk of harm.
(2) Where this subsection applies, the Welsh Ministers may, by giving notice in writing under this section to the person registered in respect of the establishment or agency, provide for any decision of the Welsh Ministers that is mentioned in subsection (3) to take effect from the time when the notice is given.
(3) Those decisions are—
(a) a decision under section 13(5) to vary or remove a condition for the time being in force in relation to the registration or to impose an additional condition;
(b) a decision under section 14A to suspend the registration or extend the period of suspension.
(4) The notice must—
(a) state that it is given under this section,
(b) state the Welsh Ministers’ reasons for believing that the circumstances fall within subsection (1)(b),
(c) specify the condition as varied, removed or imposed or the period (or extended period) of suspension, and
(d) explain the right of appeal conferred by section 21.”’.
No. 186, in schedule 5, page 123, line 31, at end insert—
‘15B (1) Section 21 of the 2000 Act (appeals to the Tribunal) is amended as follows.
(2) In subsection (1)(b), after “20” insert “or 20A”.
(3) In subsection (3), after “authority” insert “, other than a decision to which a notice under section 20B relates,”.
(4) After subsection (4) insert—
“(4ZA) On an appeal against a decision to which a notice under section 20B relates, the Tribunal may confirm the decision or direct that it shall cease to have effect.”
(5) In subsection (5)—
(a) omit the word “or” at the end of paragraph (b), and
(b) after paragraph (c) insert “; or
(d) to vary the period of any suspension.”
(6) After subsection (5) insert—
“(6) Subsection (1) does not apply to a decision of the Welsh Ministers under section 30ZA (penalty notices).”’.
No. 187, in schedule 5, page 123, line 34, at end insert—
‘16A After section 24 of the 2000 Act insert—
“24A Offences relating to suspension
(1) If a person who is registered under this Part in respect of an establishment or agency carries on or (as the case may be) manages the establishment or agency while the person’s registration is suspended, the person is guilty of an offence.
(2) A person guilty of an offence under subsection (1) is liable on summary conviction to a fine not exceeding level 5 on the standard scale.”
16B In section 26 of the 2000 Act (false descriptions of establishments and agencies), after subsection (1) insert—
“(1A) If a person’s registration under this Part has been suspended, the registration is to be treated for the purposes of subsection (1) as if it had not been effected.”’.
No. 188, in schedule 5, page 123, line 35, leave out paragraph 17 and insert—
‘17 In section 29 of the 2000 Act (proceedings for offences)—
(a) for subsection (1) substitute—
“(1) Proceedings in respect of an offence under this Part or regulations made under it shall not, without the written consent of the Attorney General, be taken by any person other than the CIECSS or the Welsh Ministers.”,
(b) in subsection (2), for “a period of six months” substitute “the permitted period”, and
(c) after subsection (2) insert—
“(3) “The permitted period” means—
(a) in the case of proceedings brought by the Welsh Ministers, a period of 12 months;
(b) in any other case, a period of 6 months.”’.
No. 189, in schedule 5, page 123, line 37, at end insert—
‘17A After section 30 of the 2000 Act insert—
“Penalty notices
30ZA Penalty notices
(1) Where the Welsh Ministers are satisfied that a person has committed a fixed penalty offence, they may give the person a penalty notice in respect of the offence.
(2) A fixed penalty offence is any relevant offence which—
(a) relates to an establishment or agency for which the Welsh Ministers are the registration authority, and
(b) is prescribed for the purposes of this section.
(3) A relevant offence is—
(a) an offence under this Part or under regulations made under this Part, or
(b) an offence under regulations made under section 9 of the Adoption and Children Act 2002.
(4) A penalty notice is a notice offering the person the opportunity of discharging any liability to conviction for the offence to which the notice relates by payment of a penalty in accordance with the notice.
(5) Where a person is given a penalty notice, proceedings for the offence to which the notice relates may not be instituted before the end of such period as may be prescribed.
(6) Where a person is given a penalty notice, the person cannot be convicted of the offence to which the notice relates if the person pays the penalty in accordance with the notice.
(7) Penalties under this section are payable to the Welsh Ministers.
(8) In this section “prescribed” means prescribed by regulations made by the Welsh Ministers.
30ZB Penalty notices: supplementary provision
(1) The Welsh Ministers may by regulations make—
(a) provision as to the form and content of penalty notices,
(b) provision as to the monetary amount of the penalty and time by which it is to be paid,
(c) provision determining the methods by which penalties may be paid,
(d) provision as to the records to be kept in relation to penalty notices,
(e) provision for or in connection with the withdrawal, in prescribed circumstances, of a penalty notice, including—
(i) repayment of any amount paid by way of penalty under a penalty notice which is withdrawn, and
(ii) prohibition of the institution or continuation of proceedings for the offence to which the withdrawn notice relates,
(f) provision for a certificate—
(i) purporting to be signed by or on behalf of a prescribed person, and
(ii) stating that payment of any amount paid by way of penalty was or, as the case may be, was not received on or before a date specified in the certificate,
to be received in evidence of the matters so stated,
(g) provision as to action to be taken if a penalty is not paid in accordance with a penalty notice, and
(h) such other provision in relation to penalties or penalty notices as the Welsh Ministers think necessary or expedient.
(2) Regulations under subsection (1)(b)—
(a) may make provision for penalties of different amounts to be payable in different cases, including provision for the penalty payable under a penalty notice to differ according to the time by which it is paid, but
(b) must secure that the amount of any penalty payable in respect of any offence does not exceed one half of the maximum amount of the fine to which a person committing the offence would be liable on summary conviction.
(3) In this section—
“penalty” means a penalty under a penalty notice;
“penalty notice” has the meaning given by section 30ZA(4).”’.
No. 190, in schedule 5, page 123, line 37, at end insert—
‘17B (1) In section 30A of the 2000 Act (notification of matters relating to persons carrying on or managing certain establishments or agencies), inserted by section 25 of the Children and Young Persons Act 2008, subsection (2) is amended as follows.
(2) After paragraph (a) insert—
“(aa) has decided to adopt a proposal under section 17(4)(aa) to suspend the registration of P in respect of the establishment or agency or to extend any such suspension,
(ab) has given a notice under section 20B to suspend the registration of P in respect of the establishment or agency or to extend any such suspension,”.
(3) Omit the word “or” at the end of paragraph (b).
(4) At the end of paragraph (c) insert “or—
(d) has given P a penalty notice under section 30ZA in respect of an offence which it alleges P committed in relation to the establishment or agency and P has paid the penalty in accordance with the notice,”.’.
No. 191, in schedule 5, page 125, line 6, at end insert—
‘22A After section 118 of the 2000 Act insert—
“118A Regulations: Wales
(1) This section has effect where a power to make regulations under this Act is conferred on the Welsh Ministers other than by or by virtue of the Government of Wales Act 2006.
(2) Subsections (1) and (5) to (7) of section 118 apply to the exercise of that power as they apply to the exercise of a power conferred on the Welsh Ministers by or by virtue of that Act.
(3) A statutory instrument containing regulations made in the exercise of that power is subject to annulment in pursuance of a resolution of the Assembly.”’.
No. 192, in schedule 5, page 125, line 6, at end insert—
‘22B In section 120 of the 2000 Act (Wales) omit subsection (1).’.—[Mr. Bradshaw.]

Stephen O'Brien: I beg to move amendment No. 86, in schedule 5, page 125, line 33, leave out ‘omit paragraph (b)’ and insert
‘leave out “CHAI” and insert “Care Quality Commission”.’.

Jimmy Hood: With this it will be convenient to discuss the following: amendment No. 87, in schedule 5, page 125, line 35, leave out ‘omit paragraph (b)’ and insert
‘leave out “CSCI” and insert “Care Quality Commission”.’.
New clause 4—Complaints procedure—
‘(1) In any case where a complainant is not satisfied with the result of an investigation by an independent provider, he may request the Commission to consider the complaint.
(2) On receipt of a complaint under subsection (1) the Commission must assess the nature and substance of the complaint and decide how it should be handled, having regard to—
(a) the views of the complainant;
(b) the views of the body complained about;
(c) any other relevant circumstances;
and as soon as reasonably practicable the Commission must notify the complainant as to its decision.
(3) The Commission may conduct its investigation in any manner which seems to it appropriate, may take such advice as appears to it to be required and, having regard in particular to the views of the complainant and any person who or body which is the subject of the complaint, may appoint a panel to hear and consider evidence.
(4) The Commission may request any person or body to produce such information and documents as it considers necessary to enable a complaint to be considered properly.
(5) Where the Commission investigates a complaint it must, as soon as reasonably practicable, prepare a written report of its investigation which—
(a) summarises the nature and substance of the complaint;
(b) describes the investigation and summarises its conclusions, including any findings of fact, the Commission’s opinion of those findings and its reasons for its opinion;
(c) recommends what action should be taken and by whom to resolve the complaint; and
(d) identifies what other action, if any, should be taken and by whom.’.
New clause 5—Independent Complaints Body—
‘(1) The Commission shall establish and maintain a committee to be known as ‘The Independent Complaints Body’.
(2) In any case where a complainant is not satisfied with the result of an investigation by an independent provider, he may request the Independent Complaints Body to consider the complaint.
(3) On receipt of a complaint under subsection (1) the Independent Complaints Body must assess the nature and substance of the complaint and decide how it should be handled having regard to—
(a) the views of the complainant;
(b) the views of the body complained about; and
(c) any other relevant circumstances;
and as soon as reasonably practicable the Independent Complaints Body must notify the complainant as to its decision.
(4) The Independent Complaints Body may conduct its investigation in any manner which seems to it appropriate, may take such advice as appears to it to be required and, having regard in particular to the views of the complainant and any person who or body which is the subject of the complaint, may appoint a panel to hear and consider evidence.
(5) The Independent Complaints Body may request any person or body to produce such information and documents as it considers necessary to enable a complaint to be considered properly.
(6) Where the Independent Complaints Body investigates a complaint it must, as soon as reasonably practicable, prepare a written report of its investigation which—
(a) summarises the nature and substance of the complaint;
(b) describes the investigation and summarises its conclusions, including any findings of fact, the Independent Complaints Body’s opinion of those findings and its reasons for its opinion;
(c) recommends what action should be taken and by whom to resolve the complaint; and
(d) identifies what other action, if any, should be taken and by whom.’.

Stephen O'Brien: New clause 4 seeks to establish a complaints handling function within the Care Quality Commission. Hon. Members will note that we skipped lightly across some earlier parts of the Bill because we had the promise and the prospect of dealing with this important issue more appropriately at this point.
New clause 5 seeks to establish an independent complaints handling body. Amendments Nos. 86 and 87 would neutralise the Government’s attempts to remove this responsibility through amendments to the 2003 Act in respect of the CQC and the complaints framework. I should state from the outset that the argument for removing the complaints handling function from the CQC has some merits given that it has been such a drain on the Healthcare Commission’s resources. During the oral evidence sessions, Dame Janet Smith, now Lady Justice Smith, stated that
“health care complaints are in a mess and causing great dissatisfaction.——[Official Report, Health and Social Care Public Bill Committee, 8 January 2008; c. 44.]
In considering these amendments, the Committee must consider where such complaints will go, and if it is happy with the status quo as concerns social care complaints, where part-funders and self-funders have no recourse to second-tier complaints. That point was also made by the hon. Member for Romsey during discussion of another part of the Bill. We have to look at whether the Committee is happy that the places where such complaints will go will be allowed to remain.
As regards the quality of complaints, the Committee should note that there are approximately 95,000 complaints in the NHS per annum. The Healthcare Commission reviews about 5 per cent., which is some 7,600 complaints. My figures have been derived from a series of parliamentary questions and other sources. In 2006-07, the health ombudsman received 863 complaints, 239 of which were to do with continuing care and 623 with other health matters. In the same year, the local government ombudsman dealt with six complaints into adult care services and two complaints into residential care. I do not have the figures for local authorities. If the Minister has them, it will be very helpful to view them.
The Healthcare Commission handled 5,867 complaints in 2004-05, 7,644 a year later, and 7,696 a year after that. In 2007-08, up to 14 December last year, 5,515 complaints were made. I hope that that gives the Committee some idea of the scale of what we have to tackle here.
I am grateful for the Minister’s confirmation this morning that the backlog of complaints for the past two years was 5,180 and 2,298 respectively. The Healthcare Commission is reaching its estimated target of closing 95 per cent. of complaints within two months, which is encouraging. All Committee members will have had letter from constituents complaining about the inordinate length of time it has taken to consider and complete some complaints. We would all like to see a more streamlined approach, but one that is still effective.
The Committee will also be aware of the written submission of the parliamentary ombudsman. I am sure that the Minister will seek to remind the Committee that the parliamentary ombudsman states:
“I fully support the Department’s proposals.”
However, her evidence throws up some important statistical questions that the Minister should answer before the Committee allows the CQC to lose its complaints function.
In the final paragraph of her evidence, the ombudsman states:
“I have already explored with the Treasury the additional funding I am likely to require.”
On that hangs her evidence and presumably her support. I would not want to criticise her of empire building, but I think that it is important that the Committee is aware of what additional funding she is likely to require especially as the first cut from the CQC will be reported as a gross saving by the Department, but could be a net loss to the taxpayer. The Committee also should know what costs to the Exchequer it is voting for as a result of the proposals in the Bill. The ombudsman refers to forecast increases in her work load. She notes that
“in the short term the changes will result in an increase in the number of enquiries made to my office and the number of investigations I undertake...as evidence I note that when the Scottish health system moved to a similar model, the number of investigations increased, but not unmanageably so”.
It would be useful if the Minister could tell the Committee, or write to it to explain what “short term” means in that context, what the figures in Scotland were, and what the forecast figures in the case of England are.
The Department has not so far provided an assessment of the increase in work load for the ombudsman. On Second Reading, the Secretary of State said:
“We will stay in touch with the ombudsman to see whether staffing is sufficient to ensure that they can cope with any increase in work.”—[Official Report, 26 November 2007; Vol. 44, c. 468.]
The Minister said that the Government discussed capacity with her and that she is satisfied that she will not be overburdened, but that they will have to deal with those issues carefully. I hope that he is in a position to give the Committee firmer figures today.
It would be helpful if the Minister could expand on the difference between the nature of complaints investigation by the Healthcare Commission, and the nature of complaints handling by the ombudsman, as the latter looks at maladministration or service failure. 
The Committee would also be reassured if the Government would outline how the winding-up of the complaints process at the Healthcare Commission, and the handing over to the ombudsman, will work out. Obviously, local providers will need time, with the commission in support, to bring their own complaints systems up to scratch. We cannot have a system whereby the ombudsman wakes up one morning with 7,000 complaints on her hands.
Another issue that the Committee should consider is the lack of a two-tier complaints structure for social care. Currently, people who have their care part funded or wholly funded by the local authority can complain through the local authority social services complaints procedure. That was raised by my hon. Friend the Member for Tiverton and Honiton in her excellent example on the previous amendment. If people are dissatisfied with the outcome of their complaint, they can ask the local government ombudsman to investigate.
Self-funders have no such option. They are at the mercy of their own home's complaints procedure, and have no other avenue apart from the courts. This debate very much plays back into the ongoing debate that this Committee has had about human rights—a number of hon. Members throughout the House are very exercised by that, and rightly so—and the disjunction between the public and private sectors in this area.
During a Westminster Hall debate on vulnerable adults, the Under-Secretary of State for Health, the hon. Member for Bury, South (Mr. Lewis), stated:
“The problem is that self-funders, of whom there are an increasing number, have nowhere to go if they are dissatisfied with the way in which the provider investigates their complaints. The regulator, as things now stand, does not investigate individual complaints. On receipt of such a complaint, the regulator can visit the home, examine practices there and take action, but they cannot investigate the individual complaint. That is an important distinction. I am committed to considering how that can be put right. In a modern care system, it is unacceptable that self-funders should not have the protection that other residents have of being able to rely on an independent element in the process, if they are dissatisfied with the handling of a complaint by the very home that they are complaining about.”—[Official Report, Westminster Hall, 11 December 2007; Vol. 469, c. 52WH.]

Sitting suspended for a Division in the House.

On resuming—

Stephen O'Brien: Before the sitting was suspended, I was referring to what the Under-Secretary said on 11 December 2007 at column 52 of the Official Report. It is odd that he should have said that he was “committed”, as that Westminster Hall debate took place after the publication of the Bill, whereas in a “File on 4” programme on care homes in September, Alan Urry reported that the Parliamentary Under-Secretary had
“agreed to look again at the need for an independent complaints body for families worried about the care of their loved ones, as he prepares to put in place a new regulatory regime due in 2009.”
Presumably, that regulatory regime is the Bill itself.
When interviewed by Mr. Urry, the Under-Secretary did not seek to disabuse him of that notion, instead saying that
“looking at whether there ought to be a right of appeal if you’re not satisfied with the way an individual provider has dealt with your complaint or some sort of independent element in the system of considering complaints...is something that we will have to consider going forward.”
The question remains: on the back of that commitment from the Under-Secretary, if the Government are serious about tackling the issue why is there nothing in the Bill? While in-house complaints avenues may work for large organisations such as hospitals, social care providers are often too small for an in-house complaints procedure to work. That was borne out by many of the examples that we have heard from hon. Members. We know from our constituency casework the strain that many regulatory regimes—and thus complaints handling by definition—put on smaller homes. None of us would wish to see a reduction in the capacity of such homes or of the service they provide in our constituencies.
Issues relating to complaints by self-funders in care homes are clearly under consideration, but there has not yet been any assessment of, or consultation on, the various options available. Furthermore, an effective complaints system at local and national level will feed into better regulation, both in the general guidelines and in the capacity to provide early warning of specific interventions. This is a well thought- through and constructive set of amendments and new clauses, which will give effect to something that, it is broadly accepted, must be looked at urgently. I am relying very much on the expectation that the explicit, on-the-record commitment of the Under-Secretary would lead to something appearing in the Bill. That is why I was anxious to have this debate on the complaints procedure.
May I ask the Minister what additional funding is the ombudsman likely to require and what have the Treasury offered? What length of time does “short-term” refer to in the ombudsman’s evidence? What is the forecast increase in her work load? What are the differences between the Healthcare Commission’s investigation and the ombudsman’s investigation, which is limited to maladministration or service failure? How will the Healthcare Commission be wound up and how will it hand over its complaints function to the CQC? Will the Minister outline how the new complaints system will feed into an effective alerts system for the CQC, regarding both broad issues in the sector and problems with specific providers? What are the Government doing about two-tier complaints for social care funders?
Unless we persuade the Under-Secretary to accept the amendment there is a danger that he will renege on his promise to provide solutions in the Bill. Those pertinent arguments go to the heart of a number of issues that Members from across the House have raised, so I hope that the amendments and the new clauses will find favour with the Minister. They were tabled in a genuine attempt to improve the Bill.

Kelvin Hopkins: I hope not to speak for very long as it is late, but I must sound a note of concern about patient complaints. A number of my hon. Friends, not necessarily members of the Committee, are concerned about changes in patient representation and procedures for patients making complaints in recent years. Those concerns remain, and I may talk about them later in Committee proceedings.
I am a member of the Public Administration Committee and the ombudsman reports to us on a regular basis. She does a first-class job. The ombudsman’s role is a part of government and our constitution that works really well. The quality of the reports that come back to our constituents are first class and better than those produced by most other institutions. We would not want to see that service diminished or weakened as a result of the ombudsman being overburdened or underfunded. I hope that my hon. Friend the Minister will take note of these concerns, which are shared by other Labour Members.

Sandra Gidley: I will make just a few brief points, as we have heard a fairly detailed explanation of the provisions. Some pertinent questions have been posed to which I, too, should like to hear the answers. I share the concerns of the hon. Member for Eddisbury, as it is vital that we know what assessment has been made of the extra work load on the ombudsman. I also share the concerns of the hon. Member for Luton, North. We would not want to see a diminution in the quality of service provided by the ombudsman. An overriding concern is that if a complaints procedure is connected with the regulator, that will be an in-house and reactive arrangement. If there is a stream of related complaints, that needs to be flagged up quite early in the process.
I am concerned that however robust the mechanism that is put in place by the Government to feed back the ombudsman’s concerns, it will not be as efficient and responsive as an in-house process. The constant development that stems from the fact that the commission can deal with complaints should not be dismissed lightly in the overall picture of improving health care for our constituents.

Brian Jenkins: I want to ask the Minister whether he shares my concerns about this area. We constantly say that we do not want to get involved with private purchasers of health care. If one of my constituents goes to a shop and buys a good that is not of merchandisable quality, they can contact trading standards, which will intervene on their behalf and ensure that they get something that is fit for purpose. Why, at the end of their life, when they are in their most vulnerable position, can they not contact a publicly funded official who will intervene on their behalf? I know that it is a difficult area to get into, but I do not think that we should run away from the problem. A lot of these problems can be solved by early intervention between the consumer and the provider, without having to get embroiled in obtaining lawyers and going through a long drawn-out process. If the Minister could explain why that is the case, I would be grateful.

Ben Bradshaw: May I begin with the point made by my hon. Friend the Member for Tamworth? There would be nothing to stop a self-funder in social care making a complaint to the Care Quality Commission if the registration requirements of the independent care home where they are resident are not being met. The Care Quality Commission could investigate that complain. What we are talking about is the investigatory role of the Care Quality Commission in taking on specific complaints.
On the point made by the hon. Member for Romsey, there is nothing to stop the Care Quality Commission analysing a pattern of complaints or having access to complaints so that it can detect patterns. It will be very important that the ombudsman works very closely with the Care Quality Commission if he or she identifies a pattern of complaints that is worthy of closer inspection and investigation. The dividing line that we are drawing is between a responsibility for ensuring quality and one for detecting patterns that might indicate that something more serious is going on. That would come under the remit of the Care Quality Commission. It will have to take on the role, which, as we have discussed, has been burdensome for the existing Healthcare Commission, of being the second-tier investigator for complaints.
I do not know if all hon. Members have had the chance to read the submission from Ann Abraham, the health care ombudsman. I am grateful to the hon. Member for Eddisbury for drawing attention to it, because Ann Abraham strongly supports what we are trying to do in this area. She thinks that it is very important that there is coherent coverage of both health and social care; effective handling at local level; a major cultural shift in the NHS from a defensive application of process to learning from complaints and a will to resolve them; and a simplified two-stage process. Both she and the Healthcare Commission have made it clear that they do not think that complaints handling is an appropriate role for any regulator.
Ann Abraham also made it clear that she has plans to ensure that her office is prepared to handle any increase, from April 2009. She recently restructured her office and is confident that it will be able to meet the forecast increases in any workload, and provide an efficient and effective response to demand. I do not have the exact figures to hand, but I shall write to the hon. Member for Eddisbury with them. I stress again that although it will not be the role of the Care Quality Commission to intervene in individual cases, it will take account of concerns, complaints and allegations when determining whether services in the independent and public sectors are provided safely and are of appropriate quality.
On self-funders in the health care or local authority systems, we are still actively considering options available to them. The Under-Secretary of State for Health was right about this. We have only just finished the consultation on the complaints system and the Government will publish their response shortly. However, before addressing future changes, or new avenues available to self-funders, I should repeat what I have said to colleagues before, which is that self-funders can, of course, take their custom elsewhere. They can choose civil remedies through the courts and, as I just mentioned to my hon. Friend the Member for Tamworth, they can complain to the PCTs or local authorities, from whom the provider is contracted, about their concerns, if they think that it has failed in its registration duties. I hope that, given those assurances, the hon. Member for Eddisbury is able to withdraw his amendment.

Stephen O'Brien: I think the Minister understands the point that we are driving at. He indicated the seriousness with which he has listened to our comments. It is clear, therefore, that what the Under-Secretary of State was saying will not be realised in this Bill, which is very regrettable. I am sorry that Government timetabling has not enabled that to happen, because it would have been wholly appropriate to make it coincide
I am concerned about self-funders, although I accept that other avenues are available. However, those avenues are available not so much because of the difference between being publicly or self-funded, but because of the type of remedy available and the sort of expertise and concerns applicable to a likely complaint. There will be no difference in the quality of care, or the vulnerability and circumstances of patients, whether in a health care or residential social care setting, between those who are publicly and privately funded. The same set of human circumstances will apply.
The fact that there are potentially two different outcomes or avenues causes a lot of us deep concern. We could end up with an unintended consequence—in this case it might be intended—whereby we have a two-tier system. I am not talking about ability to pay, because clearly from that point of view it is a two-tier system—that is what determines the cut-off point between funding social care through local taxation and means-tested benefits. In effect, if a person has available assets, they must use them first. The outcome is a two-tier system for people with a similar condition. We have an issue with that from a humanitarian point of view.

Angela Browning: I agree. It often happens in a residential care setting that we have both sets of people—self-funders and those funded by social services. When we discussed a previous amendment, I mentioned the scenario, which is not uncommon, of somebody who requires nursing care, but who social services fund at the residential rate in a private home. People who suffer the same problems can be treated unequally, and that is a matter of great concern.

Stephen O'Brien: My hon. Friend puts her finger on an instinctive concern that is probably shared across the Committee. We will try to grapple our way towards a solution.
It is important to recognise that the care complaints procedure and potential remedies available to cared-for people—be that on a health basis or a social care basis—need to be based on their care concerns, not on their financial circumstances. That is the underlying sense of this. In the absence of the Government having picked up on a number of the proposals on trying to incorporate the rights-based approach—not least those made by the hon. Member for Luton, North—we have not even got as our default position the fact that a human being also has certain rights that carry through irrespective of their financial circumstances at the start. 
Inevitably, those who have money, if they live long enough and have those care needs for long enough, will over time get down to the threshold and suddenly go from private to public. If they are in the same setting, their complaints procedure will suddenly move from a set of private avenues to a set of public avenues under the arrangements. There is therefore a legitimate point, which is causing concern.

Kelvin Hopkins: A number of us have for a long time supported the concept of free long-term residential care, as recommended by the royal commission. The Government have not accepted it. I do not think that the Opposition have accepted it either. I have tabled two early-day motions, and hope at some point to persuade the Government to do the good, honest thing, because then all these problems would disappear.

Jimmy Hood: The hon. Member for Eddisbury will not reply to that, as it has nothing to do with the amendment.

Stephen O'Brien: I am grateful to the hon. Gentleman. I am sure that we all noted what he said, and we certainly know his long-standing commitment in this area.
It may be unhelpful at this point to seek to divide the Committee. I am tempted to do so, because it would be an earnest expression of the Committee’s intent. The trouble is that it may put the matter into a more political sphere. If anyone outside is taking any notice of what we are doing, I think that this is the sort of issue which people would regard as being of such key interest that we need to rise above party politics or Government-bashing, or whatever it is.
I really do want to give the Government and this Minister the benefit of the doubt. I hope, however, that the earnest and sincere representations that have been made are now going to be taken away by him and his officials and thought through extremely carefully, because we have a right to expect something constructive to appear on Report. It would be helpful if it were in the Government’s name, but we will also pursue this. To seek to divide the Committee would inevitably put those on the Government Benches in the embarrassing position of having to decide whether they support their sentiment or their party. Rather than forcing the issue in that way, I hope that I have set the context that makes my withdrawal of the amendment possible. I have very high expectations that the Minister will satisfy me and others at a later date. I beg leave to ask to withdraw the amendment.

Amendment, by leave, withdrawn.

Ben Bradshaw: I beg to move amendment No. 153, in schedule 5, page 129, line 30, at end insert—

‘Public Audit (Wales) Act 2004 (c. 23)
In section 62 of the Public Audit (Wales) Act 2004 (co-operation), for paragraph (c) substitute—
“(c) the Care Quality Commission,”.
In section 64 of the Public Audit (Wales) Act 2004 (provision of information by CHAI)—
(a) in subsection (1), for “The Commission for Healthcare Audit and Inspection” substitute “The Care Quality Commission”,
(b) in subsection (2), for the words from “section 136” to the end substitute “section 70 of the Health and Social Care Act 2008 (disclosure of confidential personal information: offence).”, and
(c) for subsection (3) substitute—
“(3) In this section—
“English NHS body” has the meaning given by subsection (1) of section 90 of that Act; and
“cross-border SHA” means a cross-border Special Health Authority as defined by that subsection.”’.

Jimmy Hood: With this it will be convenient to discuss the following: Government amendments Nos. 154 and 155.
Government new clause 14—Provision of information by Auditor General for Wales.

Ben Bradshaw: The amendment, further consequential amendments and new clause relate to Wales.

Stephen O'Brien: I think it is only right to say formally that we note the amendments, which are a result of the discussions that have been confirmed to have been concluded with those who are responsible for devising the way forward for Welsh Ministers under the provisions of the Bill.
In passing, I note that when we last voted on Government amendments—no doubt, I could have it confirmed by a nod—only those up to amendment No. 192 were made. I suspect that amendments Nos. 193 and 194 come later under schedule 15. That makes more sense in respect of what we are dealing with. On that basis, we are not raising any objections.

Amendment agreed to.

Amendment made: No. 154, in schedule 5, page 129, line 30, at end insert—

‘Health Act 2006 (c. 28)
In section 61 of the Health Act 2006 (Commission to exercise Welsh Ministers’ appointment functions), omit “the Commission for Healthcare Audit and Inspection or”.
In Schedule 5 to the Health Act 2006 (list of statutory bodies referred to in section 58(3))—
(a) omit the entry for the Commission for Healthcare Audit and Inspection and the entry for the Commission for Social Care Inspection, and
(b) at the appropriate place insert—
“The Care Quality Commission.”’.—[Mr. Bradshaw.]

Schedule 5, as amended, agreed to.

Clause 90

General interpretation of Part 1

Stephen O'Brien: I beg to move amendment No. 47, in clause 90, page 45, line 8, after ‘regulations’, insert
‘approved by a resolution of each House of Parliament’.

Jimmy Hood: With this it will be convenient to discuss amendment No. 66, in clause 150, page 101, line 30, at end insert—
‘(aa) regulations under section 6(2),
(ab) regulations under section 9
(ac) regulations under section 12,
(ad) regulations under section 13,
(ae) regulations under section 16,
(af) regulations under section 31,
(ag) regulations under section 34,
(ah) regulations under section 36,
(ai) regulations under section 38,
(aj) regulations under section 42(9),
(ak) regulations under section 44,
(al) regulations under section 45,
(am) regulations under section 50,
(an) regulations under section 61,
(ao) regulations under section 79,
(ap) regulations under section 81,
(aq) regulations under section 110,
(ar) regulations under section 111,
(as) regulations under section 112,
(at) regulations under section 116,
(au) regulations under section 119,
(av) regulations under section 121,
(aw) regulations under section 122,
(ax) regulations under section 123,
(ay) regulations under section 124,
(az) regulations under section 125,
(aaa) regulations under section 126,
(aab) regulations under section 132,
(aac) regulations under section 133,
(aad) regulations under section 134,
(aae) regulations under section 136,
(aaf) regulations under section 138,
(aag) regulations under section 140,
(aah) regulations under section 141,
(aai) regulations under section 142,
(aaj) regulations under section 143,
(aak) regulations under section 147,
(aal) regulations under section 160,’.

Stephen O'Brien: I express my gratitude to Committee members because we are staying slightly later than intended. However, I hope that it is accepted that we have made pretty good cantering progress. If we can get through this clause we will be able to conclude part 1, which is a sensible aim.
I hope to reassure Committee members because amendment No. 66, which for their convenience appears rather late on in the whites—the amendment paper—is extraordinarily long. However, I would not want anyone to take fright, because the principle is clear and simple, and in our drafting of that amendment we have attempted to ensure that we are consistent.
Amendment No. 47 makes every resolution in part 1 affirmative. Amendment No. 66 would do the same for the whole of the Bill by amending clause 150. If, during our deliberations, Committee members notice any imperfections in that drafting, I am sure that if we establish the principle the detail can be tidied up and sorted out. However, we should seek to establish the principle of what we are trying to achieve.
In sum, a quarter of the clauses in the Bill are dependent on regulations, which is a very high proportion. First, we have to set that in the context of how that fits with the Prime Minister’s intention to strengthen Parliament, given that regulations inevitably tend to receive rather less detailed scrutiny than we can give to primary legislation. The linking aspects of the Bill make the amendments and the clause particularly relevant, because the effect of, for example, clause 39 is to make every clause in chapter 2 a Henry VIII clause—primary legislation that can be amended by regulation. By every test, it is a genuinely colossal power to put in the hands of the Secretary of State. We have had several discussions about the impact of regulations on the functions, which, if we remember, equates to the duties, as opposed to the guidance and the code, of the CQC. The ability to approve legislation by the affirmative procedure becomes all the more apt and relevant—not least to our accountability as Members.
Clause 4 is one of the few clauses that are already subject to the affirmative procedure, but I hope that on Report the Minister does not have his own clause IV moment and decide to change it, because that would be disastrous. It is important therefore to recognise that, through clause 4, the Bill contains a precedent for the affirmative procedure. The amendment is important because it is procedural, and therefore always that much more difficult to get one’s arms around. It is also important because we are trying to make the attitude of the Bill consistent. It helps that clause 4 has set that precedent.
We have also had a long discussion on the regulations and codes of practice on health care associated infections. I hope that those discussions will be reflected in the legislation. The ability to do that is very much assisted by adopting the scheme set out in these lengthy but straightforward amendments.
Amendment No. 66 stretches beyond part 1. I forewarn the Minister, in case he is not aware of it, that the Conservatives have been seeking to ensure that we put true independence in place within both the bodies being created and the regulation of health and social care professionals. I have grown used to the idea that I may live in fear and trepidation that he will, yet again, not give me the wonderful, unexpected joy of accepting my amendment, but I hope that he does. If he does not accept the merit of what I have just put forward, I need to reserve the right to attempt to bring back specific regulatory powers and provisions in the Bill, although it might have to be through separate amendments at a later stage as it passes through our House and another place. I commend the amendments to the Committee.

Ben Bradshaw: As the hon. Gentleman has said, clause 150 sets out the arrangements for parliamentary control of the delegated powers in the Bill and defines which powers will be subject to the affirmative resolution procedure. They are set out in the clause, so I shall not list them here. His amendment No. 47 would make all the delegated powers in part 1 of the Bill, on the Care Quality Commission, subject to the affirmative resolution procedure. Amendment No. 66 would increase the number of delegated powers subject to the affirmative procedure by 38. That is an unacceptably high increase and would place an unacceptable burden on parliamentary time.
We are confident that both clauses represent a sensible balance between the negative and affirmative resolution procedures. They reflect the current situation. We do not think that it would be sensible, for example, to move regulation-making powers that the Healthcare Commission currently has under the negative procedure to the affirmative, and we do not think that it would be sensible or sustainable to make every delegated power granted by Parliament subject to the affirmative procedure. Given the limits of parliamentary time, it is necessary to make some judgment as to which powers in the Bill are so crucial that they warrant a higher level of scrutiny. That is what we are trying to do.

Stephen O'Brien: The Minister’s answer has demonstrated clearly that we are dealing with a matter of judgment. It is not necessarily based on principled positions but more to do with the capacity of the House as well as a normative approach. I am absolutely sure that the reservation that I expressed earlier may be relevant, and I shall continue to study the matter with some care, although it takes an inordinate amount of work to do so. I suspect that we shall reserve our position and mention later specific points on which we want the affirmative resolution to apply, in addition to those for which it is already provided in the Bill. Unless there is recognition of the need for that, we are not really underpinning the Committee’s intention to ensure that there is genuine scrutiny of the independent body. Instead, there will be scrutiny that is over-burdened by being refracted through the Minister and his Department. We shall return to the point in some form or another at a later stage. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 90 ordered to stand part of the Bill.
Further consideration adjourned.—[Steve McCabe.]

Adjourned accordingly at eleven minutes to Five o’clock till Tuesday 22 January at half-past Ten o’clock.